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COPYRIGHT  LAW  REVISION 

HEARINGS  ^«  "^'"''^ 


BEFORE  THE 


SUBCOMMITTEE  ON  COURTS,  CIVIL  LIBERTIES, 
AND  THE  ADMINISTRATION  OF  JUSTICE 

OF  THE 

COMMITTEE  ON  THE  JUDICIARY 
HOUSE  OF  REPRESENTATIVES 

NINETY-FOURTH  CONGRESS 

FIRST  SESSION 
ON 

H.R.  2223 

COPYRIGHT  LAW  REVISION 


MAY  7,  ,S,  14,  15;  JUNE  3,  5,  11.  12  :  JT'LY  10,  17.  23  ;  SEPTEMBER  11, 
18 ;  OCTOBER  9,  30 ;  NOVEMBER  6,  20 ;  AND  DECEMBER  4,  1975 


Serial  No.  36 


''"*\a.^^^^'''^'''"'J^ 


Printed  for  the  use  of  the  Committee  on  the  Judiciary 

U.S.  GOVERNMENT  PRINTING  OFFICE 
57-786  O  WASHINGTON    :    1976 

NORTHEASTERN  UNIVERSITY  SCHOOL  of  UW  UBRARY 


COMMITTEE  ON  THE  JUDICIARY 

PETER  W.  RODINO,  JR..  New  Jersey,  Chairman 
JACK  BROOKS,  Texas  EDWARD  HUTCHINSON,  Michigan 

ROBERT  W.  KASTENMEIER,  Wisconsin         ROBERT  McCLORY,  Illinois 
DON  EDWARDS,  California  TOM  RAILSBACK,  Illinois 

WILLIAM  L.  HUNGATE,  Missouri  CHARLES  E.  WIGGINS,  California 

JOHN  CONYERS,  JR.,  Michigan  HAMILTON  FISH,  Jr.,  New  York 

JOSHUA  BILBERG,  Pennsylvania  M.  CALDWELL  BUTLER,  Virginia 

WALTER  FLOWERS,  Alabama  WILLIAM  S.  COHEN,  Maine 

JAMES  R.  MANN,  South  Carolina  CARLOS  J.  MOORHEAD,  California 

PAUL  S.  SARBANES,  Maryland  JOHN  M.  ASHBROOK,  Ohio 

JOHN  F.  SEIBERLING,  Ohio  HENRY  J.  HYDE,  Illinois 

GEORGE  E.  DANIELSON,  California  THOMAS  N.  KINDNESS,  Ohio 

ROBERT  F.  DRINAN,  Massachusetts 
BARBARA  JORDAN,  Texas 
RAY  THORNTON,  Arkansas 
RLIZABETH  HOLTZMAN,  New  York 
EDWARD  MEZVINSKY,  Iowa 
HERMAN  BADILLO,  New  York 
ROMANO  L.  MAZZOLI,  Kentucky 
EDWARD  W.  PATTISON,  New  York 
CHRISTOPHER  J.  DODD,  Connecticut 
WILLIAM  J.  HUGHES,  New  Jersey 
MARTIN  A.  RUSSO,  Illinois 

Earl  C.  Dudley,  Jr.,  General  Counsel 
Garner  J.  Cline,  Staff  Director 

Herbert  Fuchs,  Counsel 

William  p.  Shattuck,  Counsel 

Alan  A.  Parker,  Counsel 

James  F.  Falco,  Counsel 

Maurice  A.  Barboza,  Counsel 

Thomas  W.  Hutchison,  Counsel 

Arthur  P.  Endres,  Jr.,  Counsel 

Daniel  L.  Cohen,  Counsel 

Franklin  G.  Polk,  Counsel 

Thomas  E.  Mooney,  Counsel 

Alexander  B.  Cook,  Counsel 

Coonstantine  J.  GekaSj  Consel 

Alan  F.  Coffey,  Jr.,  Counsel 

Kenneth  N.  Klee,  Counsel 

Raymond  V.   Smietanka,   Counsel 


Subcommittee  on  Courts,  Civil  Liberties,  and  the  Administration  of  Justice 

ROBERT  W.  KASTENMEIER,  Wisconsin,  Chairman 
GEORGE  E.  DANIELSON,  California  TOM  RAILSBACK,  Illinois 

ROBERT  F.  DRINAN,  Massachusetts  CHARLES  E.  WIGGINS,  California 

HERMAN  BADILLO,  New  York 
EDWARD  W.  PATTISON,  New  York    ^ 

Herbert  FCchs,  Counsel 
Bruce  A.  Lehman^  Counsel 

—  Gail  P.   Higgins,   Counsel 

^^  Timothy  A.   Boggs,  Professional  Staff  Member 

*  *  Thomas  E.   Mooney,  Associate  Counsel 


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CONTENTS 


Hearings  held  on —  ^ase 

May  7,  1975 1 

May  8,  1975 - 119 

May  14,  1975 183 

May  15,  1975 267 

June  3,  1975 373 

June  5,  1975 433 

June  11,  1975 483 

June  12,  1975 683 

July  10,  1975 857 

July  17,  1975 991 

July  23,  1975 1297 

September  11,  1975 1393 

September  18,  1975 1663 

October  9,  1975 1779 

October  30,  1975 1807 

November  6,  1975 1835 

November  20,  1975 1865 

December  4,  1975 1951 

Text  of —  «a 

H.R.  2223 3 

H.R.  4965 87 

H.R.  5345 80 

S.  1361 857 

Witnesses : 

Abrams,  George,  Alphabets,  Inc 1014 

Prepared  statement 1027 

AleinikoflF,  Eugene  N.,  counsel  to  the  Agency  for  Instructional  Tele- 
vision and  Other  Educational  Television  Agencies 859 

Prepared  statement 860 

Allen,  Nicholas  E.,  counsel,  Music  Operators  of  America 421 

Barco,    George  J.,   general  counsel,   Pennsylvania   Cable   Television 

Association 656 

Prepared  statement 661 

Baumgarten,     Jon,     Macmillan,     Inc.,     and    Harcourt     Brace    and 

Jovanovich 978 

Bender,   Ivan   R.,   on  behalf   of  the   Educational   Media  Producers 

Council 978 

Prepared  statement 

Bikel,  Theodore,  president.  Actors  Equity  Association 1298 

Prepared  statement 1352 

Biller,    Joel    W.,    Secretary   for    Commercial    Affairs    and    Business 

Activities,  Department  of  State 119 

Binns,  J.  Warren,  Jr.,    administrator  of    Instructional  Television   & 

Radio  and  Educational  Products  Dissemination 859 

Prepared  statement 882 

Blake,  Eubie,  American  Guild  of  Authors  and  Composers 1648 

Bradley,  Rex  A.,  chairman,  National  Cable  Television  Association..  483 

Prepared  statement 501 

Bresnan,   William  J.,  president.   Cable  Television  Division  of  Tele- 
prompter  Corp 667 

Prepared  statement 679 

Brylawski,  E.  Fulton,  chairman,  Copyright  Committee,  Bar  Associa- 
tion of  the  District  of  Columbia 459 

Prepared  statement 460 

(in) 


rv 

Witnesses — Continued  Page 

Cairns,  Robert  W.,  executive  director,  American  Chemical  Society 229 

Prepared  statement 231 

Cameron,  Prof.  Rondo,  author 467 

Prepared  statement 473 

Chapin,  Edward  W.,  counsel.  Broadcast  Music,  Inc 907 

Ciancimino,  Albert  F.,  counsel,  SESAC,  Inc 398,  1738 

Prepared  statement 397,  1738 

Cohen,   Edwin    G.,   executive  director  of  the  Agency  Instructional 

Television 859 

Prepared  statement 880 

Cohen,  John,  member  of  the  board  of  directors.  National  Association 

of  Recording  Merchandisers,  Inc 1571 

Prepared  statement 1571 

Collins,  Fred,  Jr.,  president.  Music  Operators  of  America 410 

Cooper,    Edward,    vice    president.    Motion    Picture    Association    of 

America 1731 

Cooper,  Robert,  executive  secretary.  Community  Antenna  Television 

Association 613 

Prepared  statement 624 

Copland,  Aaron,  composer , 374 

Prepared  statement 377 

Coppedge,  John  O.,  chairman.  National  Collegiate  Athletic  Associa- 
tion,   Cable   Television  Association,    Cable   Television   Association 

Subcommittee 820 

Prepared  statement 817 

Cornils,  Wayne,  chairman.  Small  Market  Radio  Committee,  National 

Association  of  Broadcasters 1366 

Cramer,  Edward  M.,  president.  Broadcast  Music,  Inc 907 

Davis,  Louis  F.  (Chip),  composer 396 

Prepared  statement 395 

Dew,  Walter,  Advertising  Typographers  Association 1142 

Prepared  statement 1212 

Ebenstein,  Daniel,  on  behalf  of  Leonard  Storch  Enterprises,  Inc 1142 

Prepared  statement 1144 

Evans,  Robert  V.,  vice  president  and  general  counsel,  CBS,  Inc 684,  765 

Prepared  statement 683,  764 

Farmer,  Ernest  R.,  president,  Shawnee  Press,  Inc.,  Delaware  Water 

Gap,  Pa 344 

Prepared  statement 342 

Feist,  Leonard,  executive  vice  president.  National  Music  Publishers 

Association 1 579 

Fitzpatrick,  James,  general  counsel,  Recording  Industry  Association 

of  America 1298,  1393 

Ford,  Frederick  W.,  counsel.  Ad  Hoc  Committee  of  Concerned  Cable 

Television  Operators  for  a  Fair  Copyright  Law 627 

Prepared  statement 636 

Freitag,  Bernard  J.,  teacher.  Council  Rock  High  School,  New  Town, 

Pa 276 

Gastel,  Joseph,  copyright  attorney 1014 

Prepared  statement 1019 

Glover,  John  D.,  director,  Cambridge  Research  Institute 1401 

Prepared  statement - 1402 

Goldbloom,  Irwin,  Deputy  Assistant  Attorney  General,  Civil  Division, 

Department  of  Justice 127 

Prepared  statement 149 

Golodner,  Jack,  executive  secretary.  Council  of  AFL-CIO  Unions  for 

Professional  Employees 1 298 

Gortikov,    Stanley,    president.    Recording    Industry    Association    of 

America,  Inc 1298,  1393 

Prepared  statement 1304,  1394 

Gramuglia,    Thomas,    Independent   Record  &   Tape   Association   of 

America 1 238 

Prepared  statement 1279 

Hamlisch,  Marvin,  American  Guild  of  Authors  and  Composers 1646 


Witnesses — Continued 

Hardy,  Ashton  R.,  General  Counsel,  Federal  Communications  Com-  Page 

mission 433 

Prepared  statement 444 

Heilman,  David,  EC  Tape  Service 1238 

Hightower,  John,  chairman,  Advocates  for  the  Arts 1298 

Prepared  statement 1339 

Kitchens,  Howard  B.,  executive  director,  Association  for  Educational 

Communications  &  Technology 288 

Prepared  statement 279 

Hochberg,  Philip  R.,  on  behalf  of  Don  V.  Ruck,  vice  president.  Na- 
tional Hockey  League 810 

Prepared  statement 812 

Hogan,  Robert  F.,  executive  secretary.  National  Council  of  Teachers 

of  English 292 

Prepared  statement 290 

Holmes,  Lee,  president,  GuamCable  TV  Co 1717 

Prepared  statement 1719 

Hoopes,  Townsend,  president.  Association  of  American  Publishers 237 

Prepared  statement 238,  1702 

Howard,  William  K.,  president,  Hollywood  Film  Council 700 

Prepared  statement 698 

Kaminstein,  Abraham  L.,  former  Register  of  Copyrights,  Library  of 

Congress 91 

Kapp,  Michael,  president,  Warner  Special  Products 1570 

Karp,  Irwin,  counsel  for  the  Authors  League  of  America,  Inc 216 

354,  907,  1704 

Prepared  statement 220,  348,  910,  1705,  1764 

Keller,  Thomas  J.,  Acting  General  Counsel,  Office  of  Telecommuni- 
cations Policy,  Executive  Office  of  the  President 447 

Prepared  statement 457 

Kiser,  David  B.,  associate,  Cambridge  Research  Institute 1401 

Korman,  Bernard,  general  counsel,  American  Society  of  Composers, 

Authors  &  Publishers 374,  907 

Krelstein,    Harold,    chairman.    Radio   Board   of   Directors,  National 

Association  of  Broadcasters 1366 

Kuhn,  Bowie,  Commissioner  of  Baseball 794 

Prepared  statement 785 

Latman,    Alan,    attorney.    International    Typographic    Composition 

Association 991 

Prepared  statement 1004 

Leeds,  Henry,  counsel,  Mergenthaler  Corp 1014 

Lieb,  Charles  H.,  counsel  for  the  Association  of  American  Publishers 225 

Prepared  statement 226 

Linden,  Bella  L.,  representing  educational  publishers 313 

Prepared  statement 311 

Lorenz,  John  G.,  Acting  Librarian  of  Congress,  Library  of  Congress 91 

Low,  Edmon,  representative  of  six  library  associations 184 

Prepared  statement 199 

Mawdsley,  Russell,  chairman,  Legislative  Committee,  Music  Operators 

of  America 421 

Prepared  statement 418 

Meell,  Efdward  J.,  chairman.  Educational  Media  Producers  Council 330 

Prepared  statement 316 

Merry,  Donald  D.,  president,  Sicom  Electronics  Corp 474 

Prepared  statement 479 

Meyer,  Gerald,  counsel.  Motion  Picture  Association 759 

MuUiken,  Charles,  International  Typographic  Association 11 42 

Prepared  statement 1212 

Nathan,   Robert  R.,  economist  and  attorney,  president,  Robert  R. 

Nathan  Associates 1580 

Oliver,  Sy,  composer 390 

Prepared  statement 391 

Parker,    Michael,   director,   typographic  development,   Mergenthaler  391 

Corp 1014 

Prepared  statement 1036 

Patterson,  Perry  S.,  counsel,  Rock-Ola  Manufacturing  Corp 411 

Prepared  statement 413 


VI 

Witnesses — Continued 

Peer,   Ralph,   vice  president,   Peer-Southern  Organization;  director,  T'age 

National  Music  Publishers  Association 1645 

Quayle,  Donald  R.,  senior  vice  president  for  broadcasting.  Corpora- 
tion for  Public  Broadcasting 859 

Prepared  statement 863 

Raskind,    Leo   J.,    representing   the   Association   of   American    Law 
Schools,  the  American  Association  of  University  Professors,  and  the 

American  Council  on  Education 272 

Prepared  statement 269 

Ringer,  Barbara,  Register  of  Copyrights,  Library  of  Congress 91, 

1779,  1807,  1865,  1901 

Prepared  statement 95 

Rockwell,  Dr.  Margaret,  Washington  Ear 1757 

Sandler,   Jack   B.,   chairman,    Government   Relations   Committee   of 

the  Book  Manufacturers  Institute,  Inc 1695 

Prepared  statement 1697 

Sheppard,  Dr.  Walter,  representing  the  Association  of  Public  Radio 

Stations 1757 

Simon,  Gerald  A.,  managing  director,  Cambridge  Research  Institute-  1401 

Simpson,  Paul  C,  Nashville,  Tenn 693 

Prepared  statement 690 

Smith,    Eric    H.,    associate    general    counsel.     Public    Broadcasting 

Service 859 

Prepared  statement 865 

Steinbach,  Sheldon  E.,  staff  counsel,  American  Council  on  Education.  _  268 
Strackbein,  0.  R.,  representing  International  Allied  Printing  Trades 

Association 1663 

Prepared  statement 1666 

Summers,  John  B.,  general  counsel,  National  Association  of  Broad- 
casters    777 

Prepared  statement 774 

Tegtmeyer,  Rene  D.,  Assistant  Commissioner  for  Patents,  Depart- 
ment of  Commerce 163 

Prepared  statement 159 

Valenti,  Jack,  president,  Motion  Picture  Association  of  America,  Inc., 

and  the  Association  of  Motion  Picture  &  Television  Producers,  Inc-  _  704 

Prepared  statement 705,  761,  1731 

Van    Arkel,    Gerard,    general    counsel.    International    Typographical 

Union 1694 

Prepared  statement 1668 

Wally,  I.  Alan,  president.  Record  &  Tape  Association  of  America 1238 

Prepared  statement 1251 

Wasilewski,  Vincent  T.,   president.   National  Association  of   Broad- 
casters    1366 

Prepared  statement 1363 

Wasserstrom,  Alfred  H.,  copyright  attorney 1142 

Prepared  statement 1217 

Wicks,  David  O.,  Jr.,  Becker  Communications  Associates 598 

Prepared  statement 607 

Wolff,  I.  Sanford,  the  American  Federation  of  Musicians  (AFL-CIO), 
and   the    American    Federation   of   Television   and    Radio    Artists 

(AFL-CIO) 1298 

Prepared  statement 1298 

Won  Pat,  Hon.  Antonio  Borja,  a   Representative  in  Congress  from 

the  Territory  of  Guam 1717 

Zimmerman,    Thomas    F.,    first    vice    president.    National    Religious 

Broadcasters,  Inc 1 743 

Prepared  statement 1745 

Zurkowski,  Paul  G.,  president,  Information  Industry  Association 340 

Prepared  statement 332 


vn 

Additional  material — 

Affidavits  and  letters  concerning  licensing  of  copyrighted  products  to     Page 
television  stations  and  the  sale  of  advertising  time  to  advertisers 743 

Allen,  Joseph  P.,  Assistant  Administrator  for  Legislative  Affairs, 
National  Aeronautics  and  Space  Administration,  letter  dated 
September  5,  1975,  to  Hon.  Peter  W.  Rodino,  Jr.,  chairman,  House 
Committee  on  the  Judiciary 178 

American  Broadcasting  Companies,  Inc.,  prepared  statement 827 

American  Business  Press,  Inc.,  prepared  statement 252 

American  Guild  of  Authors  and  Composers  and  the  National  Music 

PubHshers  Association,  joint  statement 1586,  1641 

American  Society  of  Composers,  Authors,  and  Publishers,  prepared 

statement 925,  947 

Biemiller,  Andrew,  director.  Legislative  Department,  AFL-CIO,  letter 

dated  July  22,  1975,  to  Hon.  Robert  W.  Kastenmeier 1335 

Bresnan,  William  J.,  president.  Cable  Division,  Teleprompter  Corp..       849 

Broadcast  Music,  Inc.,  prepared  statement 389,  962,  965 

Burns,  Aaron,  president.  International  Typeface  Corp.,  letter  dated 

July  28,  1975,  to  Hon.  Robert  W.  Kastenmeier 1020 

"Cable  Television  Under  the  1972  Rules  and  the  Impact  of  Alternative 

Copyright  Fee  Proposals,"  by  Bridger  M.  Mitchell 517 

Cairns,  Robert  W.,  American  Chemical  Society,  letter  dated  June  25, 

1975,  to  Hon.  Robert  W.  Kastenmeier 243 

"Copyrightability  of  Typeface  and  Type  Font  Design,"  statement  of 

position,  Castcraft  Industries,  Inc 1228 

Coyle,  Maurice  J.,  M.D.,  Department  of  Radiology,  Providence  Hos- 
pital, Anchorage,  Alaska,  letter  dated  July  9,  1975,  to  Hon.  Peter  W. 
Rodino,  Jr 215 

Davis,  Hal  C,  president,  American  Federation  of  Musicians,  letter 

dated  July  8,  1975,  to  Hon.  Robert  W.  Kastenmeier 1658 

Ebenstein,  Daniel,  Amster  and  Rothstein,   counselors  at  law,   letter 

dated  July  18,  1975,  to  Hon.  Robert  W.  Kastenmeier 1194 

Evans,  Robert  V.,  vice  president,  CBS,  letter  dated  July  3,  1975,  to 
Hon.  Robert  W.  Kastenmeier,  chairman.  Subcommittee  on  Courts, 
Civil  Liberties,  and  the  Administration  of  Justice 689 

Feist,  Leonard,  National  Music  Pubhshers'  Association,  Inc.,  letter 

dated  October  3,  1975,  to  Hon.  Robert  W.  Kastenmeier 1651 

Finn,  James  B.,  Ph.  D.,  senior  vice  president,  research  and  develop- 
ment, the  C.  V.  Mosby  Co.,  letter  dated  August  8,  1975,  to  Dr. 
Ray  Alan  Woodriff 265 

General  license  agreement,  restaurants,  taverns,  nightclubs,  and  simi- 
lar establishments 385 

Harris,  James  A.,  president.  National  Education  Association,  pre- 
pared statement 274 

Hightower,   John   B.,   chairman.   Advocate  for  the  Arts/Association 

Councils  for  the  Arts,  prepared  statement 263 

Ivy,  Emma  G.,  R.N.,  Wrangell  General  Hospital,  Wrangell,  Alaska, 

letter  dated  July  22,  1975,  to  Hon.  Don  Young 215 

Keaney,  Kevin  J.,  general  counsel.  Federal  Librarians  Association, 

prepared  statement 262 

King,  Frank  Peewee,  composer,  prepared  statement 394 

Korman,  Bernard,  general  counsel,  American  Society  of  Composers, 
Authors,  and  Publishers,  letter  dated  August  6,  1975,  to  Hon. 
Robert  W.  Kastenmeier 383 

Lindow,    Lester    W.,    executive    director.    Association    of    Maximum 

Service  Telecasters,  prepared  statement 845 

Lorenz,  John  G.,  Acting  Librarian  of  Congress,  letter  dated  August 
26,  1975,  to  Hon.  Peter  W.  Rodino,  Jr.,  chairman.  House  Com- 
mittee on  the  Judiciary 174 

McCloskey,  Robert  J.,  Assistant  Secretary  for  Congressional  Rela- 
tions, Department  of  State,  letter  dated  May  7,  1975,  to  Hon.  Peter 
W.  Rodino,  Jr.,  chairman.  House  Committee  on  the  Judiciary 172 

McKenna,   Frank,  executive  director.  Special  Libraries  Association, 

prepared  statement 209 

Marke,  Julius  J.,  American  Association  of  Law  Libraries,  prepared 

statement 254 


VIII 

Additional  material — iContinued 

Marshall,  Nancy  H.,  director,  Wisconsin  Interlibrary  Loan  Service, 

Madison,    Wis.,   letter  dated   May  6,    1975,   to   Hon.    Robert   W.     Page 

Kastenmeier 215 

Mathews,  Hon.  David,  Secretarj',  Department  of  Health,  Education, 

and  Welfare,  prepared  statement 261 

Mercer,  Johnny,  composer,  prepared  statement 381 

Mergenthaler  Linotype  Co.,  prepared  statement 1054 

Nathan,  Robert  R.,  president,  Robert  R.  Nathan  Associates,  Inc., 

letter  dated  October  24,  1975,  to  Hon.  Robert  W.  Kastenmeier 1640 

National  Broadcasting  Co.,  Inc.,  prepared  statement 825,  1385 

National  Music  Publishers  Association  and  American  Guild  of  Authors 

&  Composers,  prepared  statement 920 

Nimmer,  Prof.  Melville  B.,  professor  of  law,  UCLA  School  of  Law, 

prepared  statement 1038 

Norwood,  Frank  W.,  executive  secretary.  Joint  Council  on  Educational 

Telecommunications,  letter  dated  July  10,  1975,  to  Hon.  Robert  W. 

Kastenmeier 883 

Parker,  Michael,  director,  Tj^pographical  Development  Mergenthaler 

Linotype   Co.,   letter  dated  July   28,    1975,   to  Hon.    Robert   W. 

Kastenmeier 1041 

Passano,  William  M.,  chairman  of  the  board,  Williams  &  Wilkins  Co., 

prepared  statement 260 

Rayin,  Mona  (R.N.),  instructor  coordinator  of  R.N.  Programs  and 

Outreach,  letter  dated  August  12,  1975,  to  Hon.  Don  Young 214 

"Registration  of  Original  Typeface  Designs:  Extension  of  Comment 

Period,"  vol..  No.  223,  Federal  Register,  November  18,  1975 1017 

"Registration  of  Original  Typeface  Designs,"  vol.  39,  No.  176,  Federal 

Register,  September  10,  1974 1016 

Ringer,  Barbara,  Register  of  Copyrights,  letter  dated  June  6,  1975,  to 

Hon.  Robert  W.  Kastenmeier 1008 

Ruck,   Don  V.,   vice  president.   National  Hockey  League,  prepared 

statement 813 

Schrader,  Dorothy  M.,  General  Counsel,  Copyright  Office,  prepared 

statement 1015 

Stevens,  Hon.  Ted,  a  U.S.  Senator  From  the  State  of  Alaska,  letter 

dated  October  8,  1975,  to  Hon.  Robert  W.  Kastenmeier 1659 

Steuermann,  Clara,  president.  Music  Library  Association,  prepared 

statement 207 

"The   Great  American   Rip-Off,"  bj'  Mike  Terranova,   a  pamphlet 

published  by  the  Independent  Record  and  Tape  Association  of 

America 1265 

Times  Mirror,  prepared  statement 852 

"Typeface  Design  Protection,"  statement  of  position  of  the  American 

Institute  of  Graphic  Arts 1226 

Valenti,  Jack,  president.  Motion  Picture  Association  of  America,  Inc., 

letters  to  Hon.  Robert  W.  Kastenmeier — 

September  10,  1975 1724 

November  7,  1975 . 1736 

Vanantwerpen,  F.  J.,  president.  Council  of  Engineering  and  Scientific 

Society  Executives,  prepared  statement 369 

Wally,  Alan  I.,  president,  Record  and  Tape  Association  of  America, 

letter  dated  July  22,  1975,  to  Hon.  Robert  W.  Kastenmeier 1263 

Warren,  Albert,  chairman.  Copyright  Committee,  Independent  News- 
letter Association,  prepared  statement 367 

Wigron,  Harold  E.,  National  Education  Associations 276 

Woodriff,  Dr.  Ray,  Department  of  Chemistry,  Montana  State  Univer- 
sity, prepared  statement 265 

Young,  Hon.  Don,  a  Representative  in  Congress  From  the  State  of 

Alaska,    letter    dated    October    2,     1975,    to    Hon.     Robert    W. 

Kastenmeier 214 

Appendixes 

Appendi?t  1. — Teleprompter  Corp.  memorandum  on  Constitutionality 

of  Proposed  Copyright  Legislation  (H.R.  2223) 1917 

Appendix  2. — 18  briefing  papers  submitted  by  the  Copyright  Office__     2051 
Appendix  3. — Report  of  Working  Group  of  Conference  on  Resolution 

of  Copyright  Issues  (dealing  with  library  photocopying) 2092 

Appendix  4. — Miscellaneous  communications 2124 


COPYRIGHT  LAW  REVISION 


WEDNESDAY,   MAY   7,    1975 

House  of  Representatives, 
Subcommittee  on  Courts,  Civil  Liberties, 

AND  THE  Administration  of  Justice 
OF  THE  Committee  on  the  Judiciary 

Washingto?!,  B.C. 

The  subcommittee  met,  pursuant  to  notice,  at  10:10  a.m.,  in  room 
2226,  Rayburn  House  Office  Building,  Hon.  Robert  W.  Kastenmeier 
[chairman  of  the  subcommittee]  presiding. 

Present :  Representatives  Kastemneier,  Danielson,  Drinan,  Pattison, 
Railsiback,  and  Wiggins. 

Also  present :  Herbert  Fuchs  and  Bruce  A.  Lehman,  counsels ;  and 
Thomas  E.  Mooney,  associate  counsel. 

Mr.  Kastenmeier.  The  committee  will  come  to  order.  We  have  met 
this  morning  to  begin  subcommittee  hearings  on  H.R.  2223,  introduced 
by  the  Chair,  for  the  general  revision  of  the  copyright  law. 

Ten  yeare  ago  this  month  in  this  room  the  subcommittee  began  what 
turned  out  to  be  22  days  of  public  hearings  on  a  bill  having  the  same 
purpose,  namely,  the  total  revision  of  title  17,  United  States  Code,  the 
copyright  law. 

The  1965  hearings,  followed  by  many  subcommittee  meetings,  re- 
sulted in  a  revision  bill  being  reported  to  and  passed  by  the  House  of 
Representatives  on  April  11,  1967.  The  Senate,  however,  failed  to  act 
on  that  bill  and  the  House-passed  bill  expired. 

In  September  1974,  when  the  Senate  at  last  did  pass  a  copyright  law 
revision  bill,  the  involvement  of  the  House  Judiciaiy  Committee  in 
the  nomination  of  Nelson  Rockefeller  to  be  Vice  President  prevented 
House  consideration  of  the  measure  during  what  was  left  of  1974. 
However,  the  Congress  did  enact  legislation  creating  a  National  Com- 
mission on  New  Technological  Uses  of  Copyrighted  Works,  of  which 
the  President  is  to  appoint  the  members. 

With  the  coining  of  1975,  Senator  McClellan  reintroduced  the  1974 
Senate-passed  bill  as  S.  22,  and  the  Chair  introduced  an  identical  bill 
in  the  House  under  the  number  H.R.  2223.  Title  II  of  the  bills  S.  22  and 
H.R.  2223,  go  beyond  providing  copyright  law  revision,  and  provide 
protection  of  ornamental  designs  of  useful  articles. 

In  addition,  the  subcommittee  has  before  it  two  measures  directly 
related  to  the  proposed  revision.  One  of  these,  H.R.  5345,  introduced 
by  our  subcommittee  colleague,  Mr.  Danielson,  would  create  a  per- 
former's royalty  as  part  of  the  bundle  of  rights  known  as  copyright. 

The  other,  H.R.  4965,  introduced  by  Mr.  Won  Pat,  would  authorize 
the  making  of  video  tapes  for  transmission  on  noncontiguous  cable 
television  systems,  that  is,  in  places  other  than  the  48  mainland  States. 

(1) 


H.R.  2223,  H.R.  5345,  and  H.R.  4965  will  be  placed  in  the  record 
of  the  hearings  at  the  conclusion  of  this  statement. 

Article  I,  section  8  of  the  Federal  Constitution  empowers  Congress 
"to  promote  the  progress  of  science  and  useful  arts,  by  securing  to 
authors  *  *  *  the  exclusive  right  to  their  *  *  *  writings  *  *  *."  At  the 
very  least,  therefore,  Congress  has  the  constitutional  obligation  to 
determine  whether  and  to  what  extent  the  progress  of  the  useful  arts 
will  be  promoted  by  congressional  grants  of  exclusivity  for  the  writ- 
ings of  authors. 

The  purpose  of  the  pending  legislation  is,  in  short,  to  bring  up  to 
date  the  copyright  law  which  has  not  been  substantially  revised  since 
1 909.  It  should  be  our  commitment  to  correct  this  neglect,  for  the  great 
and  growing  acceleration  of  technology  and  the  resultant  new  uses  of 
copyrighted  works  have  rendered  much  of  the  existing  law  inade- 
quate and  obsolete. 

The  subcommittee  is  pleased,  this  morning,  to  open  the  hearings  by 
welcoming  witnesses  from  the  Library  of  Congress.  We  have  the 
Honorable  John  G.  Lorenz,  Acting  Librarian  of  Congress;  Abraham 
L.  Kaminstein,  former  Register  of  Copyrights  who  went  through  the 
1965-67  hearings  with  us,  and  Barbara  Ringer,  also  an  old  friend,  the 
present  Register  of  Copyrights.  Mr.  Lorenz,  will  you  begin  ? 

[H.R.  2223,  H.R.  5345,  and  H.R.  4965  are  as  follows:] 


94th  CONGRESS    f  f        ^%  OOOO 

1ST  Session  J^^     |^^      ZZZO 


IN  THE  HOUSE  OF  REPRESENTATIVES 

January  28,1975 

Mr.  Kastenmeier  introduced  the  following  bill ;  which  was  referred  to  the  Com- 
mittee on  the  Judiciary 


A  BILL 

For  the  general  revision  of  the  Copyright  Law,  title  17  of  the  United  States 

Code,  and  for  other  purposes. 

1  Be  it  enacted  hy  the  Seiiate  and  House  of  Representatives  of  the 

2  United  States  of  America  in  Congress  assembled, 

3  TITLE  I— GENERAL  REVISION  OF  COPYRIGHT  LAW 

4  Sec.  101.  Title  17  of  the  United  States  Code,  entitled  "Copyrights", 

5  is  hereby  amended  in  its  entirety  to  read  as  follows : 

6  TITLE  17— COPYRIGHTS 

Chapter  Sec. 

1.  Subject  Matter  and  Scope  of  Copyright 101 

2.  CoPTRiGHT  Ownership  and  Transfer 201 

3.  Duration  of  Copyright 301 

4.  Copyright  Notice,  Deposit,  and  Registration 401 

5.  Copyright  Infringement  and  Remedies 501 

6.  Manufacturing  Requirement  and  Importation 601 

7.  Copyright  Office 701 

8.  Copyright  Royalty  Tribunal. 801 

7  Chapter  1.— SUBJECT  MATTER  AND  SCOPE  OF  COPYRIGHT 

Sec. 

101.  Definitions. 

102.  Subject  matter  of  copyright :  In  general. 

103.  Subject  matters  of  copyright :  Compilations  and  derivative  works. 

104.  Subject  matter  of  copyright :  National  origin. 

105.  Subject  matter  of  copyright :  United  States  Government  works. 

106.  Exclusive  rights  in  copyrighted  works. 

107.  Limitations  on  exclusive  rights  :  Fair  use. 

108.  Limitations  on  exclusive  rights  :   Reproduction  by  libraries  and  archives. 


2 

1  TITLE  17— COPYRIGHTS— Continued 

2  Chapter  1.— SUBJECT  MATTER  AND  SCOPE  OF 

3  COPYRIGHT— Continued 

Sec. 

109.  Limitations  on  exclusive  rights  :  Effect  of  transfer  of  particular  copy  or 

phonorecord. 

110.  Limitations  on  exclusive  rights :  Exemption  of  certain  performances  and 

displays. 

111.  Limitations  on  exclusive  rights  :  Secondary  transmissions. 

112.  Limitations  on  exclusive  rights  :  Ephemeral  recordings. 

113.  Scope  of  exclusive  rights  in  pictorial,  graphic,  and  sculptural  works. 

114.  Scope  of  exclusive  rights  in  sound  recordings. 

115.  Scope  of  exclusive  rights  in  nondramatic  musical  works  :  Compulsory  license 

for  making  and  distributing  phonorecords. 

116.  Scope  of  exclusive  rights  in  nondramatic  musical  works  :   Public  perform- 

ances by  means  of  coin-operated  phonorecord  players. 

117.  Scope  of  exclusive  rights :  Use  in  conjunction  with  computers  and  similar 

information  systems. 

4  §  101.  Definitions 

5  As  used  in  this  title,  the  following  terms  and  their  variant  forms 

6  mean  the  following : 

7  An  "anonymous  work"  is  a  work  on  the  copies  or  phonorecords 

8  of  which  no  natural  person  is  identified  as  author. 

9  "Audiovisual  works"  are  works  that  consist  of  a  series  of  related 

10  images  which  are  intrinsically  intended  to  be  shown  by  the  use  of 

11  machines  or  devices  such  as  projectors,  viewers,  or  electronic 
13  equipment,  together  with  accompanying  sounds,  if  any,  regardless 

13  of  the  nature  of  the  material  objects,  such  as  films  or  tapes,  in 

14  which  the  works  are  embodied. 

15  The  "best  edition"  of  a  work  is  the  edition,  published  in  the 

16  United  States  at  any  time  before  the  date  of  deposit,  that  the  Li- 

17  brary  of  Congress  determines  to  be  most  suitable  for  its  purposes. 

18  A  person's  "children"  are  his  immediate  offspring,  whether 

19  legitimate  or  not,  and  any  children  legally  adopted  by  him. 

20  A  "collective  work"  is  a  work,  such  as  a  periodical  issue,  an- 

21  thology,  or  encyclopedia,  in  which  a  number  of  contributions, 

22  constituting  separate  and  independent  works  in  themselves,  are 

23  assembled  into  a  collective  whole. 

24  A  "compilation"  is  a  work  formed  by  the  collection  and  assem- 

25  bling  of  pre-existing  materials  or  of  data  that  are  selected,  coordi- 

26  nated,  or  arranged  in  such  a  way  that  the  resulting  work  as  a 

27  whole  constitutes  an  original  work  of  authorship.  The  term  "com- 

28  pilation"  includes  collective  works. 

29  "Copies"  are  material  objects,  other  than  phonorecords,  in  which 

30  a  work  is  fixed  by  any  method  now  known  or  later  developed,  and 

31  from  which  the  work  can  be  perceived,  reproduced,  or  otherwise 


1  communicated,  either  directly  or  with  the  aid  of  a  machine  or 

2  device.  The  term  "copies"  includes  the  material  object,  other  than 

3  a  phonorecord,  in  which  the  work  is  first  fixed. 

4  "Copyright  owner,"  with  respect  to  any  one  of  the  exclusive 

5  rights  comprised  in  a  copyright,  refers  to  the  owner  of  that  par- 

6  ticular  right. 

7  A  work  is  "created"  when  it  is  fixed  in  a  copy  or  phonorecord 

8  for  the  first  time ;  where  a  work  is  prepared  over  a  period  of  time, 

9  the  portion  of  it  that  has  been  fixed  at  any  particular  time  con- 

10  stitutes  the  work  as  of  that  time,  and  where  the  work  has  been 

11  prepared  in  diiferent  versions,  each  version  constitutes  a  separate 

12  work. 

13  A  "derivative  work"  is  a  work  based  upon  one  or  more  pre- 

14  existing  works,  such  as  a  translation,  musical  arrangement,  dram- 

15  atization,  fictionalization,  motion  picture  version,  sound  record- 

16  ing,  art  reproduction,  abridgment,  condensation,  or  any  other 

17  form  in  which  a  work  may  be  recast,  transformed,  or  adapted.  A 

18  work  consisting  of  editorial  revisions,  annotations,  elaborations, 

19  or  other  modifications  which,  as  a  whole,  represent  an  original 

20  work  of  authorship,  is  a  "derivative  work." 

21  A  "device,"  machine,"  or  "process"  is  one  now  known  or  later 

22  developed. 

2*^  To  "display"  a  work  means  to  show  a  copy  of  it,  either  directly 

24  or  by  means  of  a  film,  slide,  television  image,  or  any  other  device 

25  or  process  or,  in  the  case  of  a  motion  picture  or  other  audiovisual 

26  work,  to  show  individual  images  nonsequentially. 

27  A  work  is  "fixed"  in  a  tangible  medium  of  expression  when  its 

28  embodiment  in  a  copy  or  phonorecord,  by  or  under  the  authority 

29  of  the  author,  is  sufficiently  permanent  or  stable  to  permit  it  to 

30  be  perceived,  reproduced,  or  otherwise  communicated  for  a  period 

31  of  more  than  transitory  duration.  A  work  consisting  of  sounds. 

32  images,  or  both,  that  are  being  transmitted,  is  "fixed"  for  pur- 

33  poses  of  this  title  if  a  fixation  of  the  work  is  being  made  simultane- 

34  ously  with  its  transmission. 

35  The  terms  "including"  and  "such  as"  are  illustrative  and  not 

36  limitative. 

37  A  "joint  work"  is  a  work  prepared  by  two  or  more  authors 

38  with  the  intention  that  their  contributions  be  merged  into  insepa- 

39  rable  or  interdependent  parts  of  a  unitary  whole. 

40  "Literary   works"   are   works  other  than  audiovisual   works, 


6 


1  expressed  in  words,  numbers,  or  other  verbal  or  numerical  sym- 

2  bols  or  indicia,  regardless  of  the  nature  of  the  material  objects, 

3  such  as  books,  periodicals,  manuscripts,  phonorecords,  or  film,  in 

4  which  they  are  embodied. 

5  "^Motion  pictures"  are  audiovisual  works  consisting  of  a  sei-ies 

6  pi  related  images  which,  when  shown  in  succession,  impart  an 

7  impression  of  motion,  together  with  accompanying  sounds,  if  any. 

8  To  "perform"  a  work  means  to  recite,  render,  play,  dance,  or 

9  act  it,  either  directly  or  by  means  of  any  device  or  pix)cess  or,  in 

10  the  case  of  a  motion  picture  or  other  audiovisual  work,  to  show  its 

11  images  in  any  sequence  or  to  make  the  sounds  apcqmpanying  it 

12  audible. 

13  "Phonorecords"  are  material  objects  in  which  sounds  other  than 

14  those  accompanying  a  motion  picture  or  otlier  ai|diovisual  woi-k, 

15  are  fixed  by  any  method  now  known  or  later  xieveloped,  and  from 

16  which  the  sounds  can  be  perceived,  reproduced,  or  otherwise  com- 

17  municated,  either  directly  or  with  the  aid  of  a  n^achine  or  device. 

18  The  term  "phonorecords"  includes  the  material  object  in  which 

19  the  sounds  are  first  fixed. 

20  "Pictorial,  graphic,  and  sculptural  works"  include  two-dimen- 

21  sional  and  three-dimensional  works  of  fiixe,  graphic,  and  applied 

22  art,  photographs,  prints  and  art  reproductions,  maps,  globes, 

23  charts,  plans,  diagrams,  and  models. 

24  A  "pseudonymous  work"  is  a  work  on  the  copies  or  plienor 

25  records,  of  which  the  author  is  identified  under  a  fictitious  name. 

26  "Publication"  is  the  distribution  of  copies  or  phonorecords  of  a 

27  work  to  the  public  by  sale  or  other  transfer  of  ownership,  or  by 

28  rental,  lease,  or  lending.  The  offering  to  distribute  copies  or 

29  phonorecords  to  a  group  of  persons  for  purposes  of  further  disr 

30  tribution,   public   performance,   or    public    display,    constitutes 

31  publication.  A  public  performance  or  display  of  a  work  does  not 

32  of  itself  constitute  publication. 

33  To  perform  or  display  a  work  "publicly"  means  i 
( 1 )  to  perform  or  display  it  at  a  place  open  to  the  public  or 

at  any  place  where  a  substantial  number  of  persons  outside 
of  a  normal  circle  of  a  family  and  its  social  acquaintances  is 


34 
35 
36 


37  gathered ; 


38 
39 


(2)  to  transmit  or  otherwise  communicate  a  performance 
or  display  of  the  work  to  a  place  specified  by  clause  (1)  or 
*"  to  the  public,  by  means  of  any  device  or  process,  whetlier  the 


1  members  of  the  public  capable  of  receiving  the  performance 

2  or  display  receive  it  in  the  same  place  or  in  separate  places 

3  and  at  the  same  time  or  at  different  times. 

4  "Sound  recordings"  are  works  that  result  from  the  fixation  of 

5  a  series  of  musical,  spoken,  or  other  sounds,  but  not  including  the 

6  sounds  accompanying  a  motion  picture  or  other  audiovisual  work, 

7  regardless  of  the  nature  of  the  material  objects,  such  as  disks, 

8  tapes,  or  other  phonorecords,  in  which  they  are  embodied. 

9  "State"  includes  the  District  of  Columbia  and  the  Common- 

10  wealth  of  Puerto  Rico,  and  any  territories  to  which  this  title  is 

11  made  applicable  by  an  act  of  Congress. 

12  A  "transfer  of  copyright  ownership"  is  an  assignment,  mort- 

13  gage,  exclusive  license,  or  any  other  conveyance,  alienation,  or 

14  hypothecation  of  a  copyright  or  of  any  of  the  exclusive  rights 

15  comprised  in  a  copyright,  whether  or  not  it  is  limited  in  time  or 

16  place  of  effect,  but  not  including  a  nonexclusive  license. 

17  A  "transmission  program"  is  a  body  of  material  that,  as  an 

18  aggregate,  has  been  produced  for  the  sole  purpose  of  transmission 

19  to  the  public  in  sequence  and  as  a  xmit. 

20  To  "transmit"  a  performance  or  display  is  to  communicate  it 

21  by  any  device  or  process  whereby  images  or  sounds  are  received 

22  beyond  the  place  from  which  they  are  sent. 

23  The  "United  States,"  when  used  in  a  geographical  sense,  com- 

24  prises  the  several  States,  the  District  of  Columbia  and  the  Com- 

25  monwealth  of  Puerto  Rico,  and  the  organized  territories  under 

26  the  jurisdiction  of  the  United  States  Government. 

27  A  "useful  article"  is  an  article  having  an  intrinsic  utilitarian 

28  function  that  is  not  merely  to  portray  the  appearance  of  the 

29  article  or  to  convey  information.  An  article  that  is  normally  a  part 

30  of  a  useful  article  is  considered  a  "useful  article." 

31  The  author's  "widow"  or  "widower"  is  the  author's  surviving 

32  spouse  under  the  law  of  his  domicile  at  the  time  of  his  death, 

33  whether  or  not  the  spouse  has  later  remarried. 

34  A  "work  of  the  United  States  Government"  is  a  work  prepared 

35  by  an  officer  or  employee  of  the  United  States  Government  as  part 

36  of  his  official  duties. 

37  A  "work  made  for  hire"  is : 

38  (1)  a  work  prepared  by  an  employee  within  the  scope  of 

39  his  employment ;  or 


•8 


1  (2)  a  work  specially  ordered  or  commissioned  for  use  as 

2  a  contribution  to  a  collective  work,  as  a  part  of  a  motion  pic- 

3  ture  or  other  audiovisual  work,  as  a  translation,  as  a  supple- 
4:                      mentary  work,  as  a  compilation,  as  an  instructional  text,  as 

5  a  test,  as  answer  material  for  a  test,  as  a  photographic  or 

6  other  portrait  of  one  or  more  persons,  or  as  an  atlas,  if  the 

7  parties  expressly  agree  in  a  written  instrument  signed  by 

8  them  that  the  work  shall  be  considered  a  work  made  for  hire. 
^                      A  "supplementary  work"  is  a  work  prepared  for  publication 

10  as  a  secondary  adjunct  to  a  work  by  another  author  for  the 

^^  purpose  of  introducing,  concluding,  illustrating,  explaining, 

12  revising,  commenting  upon,  or  assisting  in  the  use  of  the  other 

13  work,  such  as  forewords,  afterwords,  pictorial  illustrations, 
1^  maps,  charts,  tables,  editorial  notes,  musical  arrangements, 
1^  answer  material  for  tests,  bibliographies,  appendixes,  and 
1^  indexes.  An  "instructional  text'*  is  a  literary,  pictorial,  or 
1'  graphic  work  prepared  for  publication  with  the  purpose  of 
1°  use  in  systematic  instructional  activities. 

§  102.  Subject  matter  of  copyright:  In  general 

(a)  Copyright  protection  subsists,  in  accordance  with  this  title,  in 
"1  original  works  of  authorship  fixed  in  any  tangible  medium  of  expres- 
"2  sion,  now  known  or  later  developed,  from  which  they  can  be  perceived, 
"3  reproduced,  or  otherwise  communicated,  either  directly  or  with  the  aid 
2*  of  a  machine  or  device.  Works  of  authorship  include  the  following 
"^      categories : 

2"  ( 1 )  literary  works ; 

^'  (2)  musical  works,  including  any  accompanying  words  ; 

^^  (3)  dramatic  works,  including  any  accompanying  music; 

^^  (4)  pantomimes  and  choreographic  works; 

^"  ( 5 )  pictorial,  graphic,  and  sculptural  works ; 

^1  ( 6 )  motion  pictures  and  other  audiovisual  works ; 

^^  (7)  sound  recordings. 

(b)  In  no  case  does  copyright  protection  for  an  original  work  of 
autliorship  extend  to  any  idea,  plan,  procedure,  process,  system,  method 
of  operation,  concept,  principle,  or  discovery,  regardless  of  the  form 
in  which  it  is  described,  explained,  illustrated,  or  embodied  in  such 
work. 


19 
20 


33 
34 

35 
36 
37 

^°      §103.  Subject  matter  of  copyright:  Compilations  and  derivative 
3"  works 

(a)  The  subject  matter  of  copyright  as  specified  by  section  102  in- 


40 


9 


1  eludes  compilations  and  derivative  works,  but  protection  for  a  work 

2  employing  pre-existing  material  in  which  copyright  subsists  does  not 

3  extend  to  any  part  of  the  work  in  which  such  material  has  been  used 

4  unlawfully. 

5  (b)  The  copyright  in  a  compilation  or  derivative  work  extends  only 

6  to  the  material  contributed  by  the  author  of  such  work,   as  dis- 

7  tinguished  from  the  pre-existing  material  employed   in  the   work, 

8  and  does  not  imply  any  exclusive  right  in  the  pre-existing  material. 

9  The  copyright  in  such  work  is  independent  of,  and  does  not  aifect 

10  or  enlarge  the  scope,  duration,  ownership,  or  subsistence  of,  any  copy- 

11  right  protection  in  the  pre-existing  material. 

12  §  104.  Subject  matter  of  copyright :  National  origin 

13  (a)  Unpublished  Works. — The  works  specified  by  sections  102  and 

14  103,  while  unpublished,  are  subject  to  protection  under  this  title  with- 

15  out  regard  to  the  nationality  or  domicile  of  the  author. 

16  (b)  PtJBLisHED  Works. — The  works  specified  by  sections  102  and 

17  103,  when  published,  are  subject  to  protection  under  this  title  if — 

18  (1)  on  the  date  of  first  publication,  one  or  more  of  the  authors 

19  is  a  national  or  domiciliary  of  the  United  States,  or  is  a  national, 

20  domiciliary,  or  sovereign  authority  of  a  foreign  nation  that  is  a 

21  party  to  a  copyright  treaty  to  which  the  United  States  is  also  a 

22  party ;  or 

23  (2)  the  work  is  first  published  in  the  United  States  or  in  a  for- 

24  eign  nation  that,  on  the  date  of  first  publication,  is  a  party  to  the 

25  Universal  Copyright  Convention  of  1952 ;  or 

26  (3)  the  work  is  first  published  by  the  United  Nations  or  any 

27  of  its  specialized  agencies,  or  by  the  Organization  of  American 

28  States ;  or 
(4)  the  work  comes  within  the  scope  of  a  Presidential  procla- 
mation. Whenever  the  President  finds  that  a  particular  foreign 

31  nation  extends,  to  works  by  authors  who  are  nationals  or  domicili- 

32  aries  of  the  United  States  or  to  works  that  are  first  published  in 

33  the  United  States,  copyright  protection  on  substantially  the  same 

34  basis  as  that  on  Avhich  the  foreign  nation  extends  protection  to 

35  works  of  its  own  nationals  and  domiciliaries  and  works  first  pub- 
lished in  that  nation,  he  may  by  proclamation  exlend  protection 

3'  under  this  title  to  works  of  which  one  or  more  of  the  authors  is, 
on  the  date  of  first  publication,  a  national,  domiciliary,  or  sov- 
ereign  authority  of  that  nation,  or  which  was  first  published  in 
that  nation.  The  President  may  revise,  suspend,  or  revoke  any 


29 
30 


40 
41 

42 


10 


8 

1  such  proclamation  or  impose  any  conditions  or  limitations  on 

2  protection  under  a  proclamation. 

3  (c)   The  expropriation,  by  a  <iovernmental  organization  of  a  for- 

4  eijrn  country,  of  a  copyripfht,  or  the  ri<rht  to  secure  a  copyrifrht,  or 

5  any  rigfht  comprised  in  a  copyright,  or  any  right  in  a  work  for  which 

6  copyright  may  be  secured,  or  the  transfer  of  a  copyright  or  of  any  such 

7  right,  or  the  power  to  authorize  any  use  of  the  work  thereunder,  from 

8  the  author  or  copyright  owner  to  a  governmental  agency  of  a  foreign 

9  country  pursuant  to  any  law,  decree,  regulation,  order  or  other  action 

10  of  the  government  effecting  or  requiring  such  transfer,  shall  not  be 

11  given  effect  for  the  purposes  of  this  title. 

12  §105.  Subject  matter  of  copyright:  United  States  Government 

13  works 

14  Copyright  protection  under  this  title  is  not  available  for  any  work 

15  of  the  United  States  Government,  but  the  United  States  Government 

16  is  not  precluded  from  receiving  and  holding  copyrights  transferred 

17  to  it  by  assignment,  bequest,  or  otherwise. 

18  §  106.  Exclusive  rights  in  copyrighted  works 

19  Subject  to  sections  107  through  117,  the  owner  of  copyriglit  under 

20  this  title  has  the  exclusive  rights  to  do  and  to  authorize  any  of  the 

21  following : 

22  (1)   to  reproduce  the  copyrighted  work  in  copies  or  phono- 

23  records ; 

24  (2)   to  prepare  derivative  works  based  upon  the  copyrighted 

25  work ; 

26  (3)   to  distribute  copies  or  phonorccords  of  the  copyrighted 

27  work  to  the  public  by  sale  or  other  transfer  of  ownersliip,  or  by 

28  rental,  lease,  or  lending; 

29  (4)   inthecaseof  literary,  musical,  dramatic,  and  choreographic 

30  works,  pantomimes,  juotion  pictures  and  other  audiovisual  works. 

31  to  perform  the  copyrighted  work  publicly ; 

32  (5)   in  the  case  of  literary,  musical,  dramatic  and  choreographic 

33  works,  pantomimes,  and  pictorial,  graphic,  or  sculptural  works, 

34  including  the  individual  images  of  a  motion  picture  or  other 

35  audiovisual  work,  to  display  the  copyrighted  work  publicly. 

36  §  107.  Limitations  on  exclusive  rights:  Fair  use 

37  Notwithstanding  the  provisions  of  section  106,  the  fair  use  of  a 

38  copyrighted  work,  including  such  use  by  reproduction  in  copies  or 

39  phonorecords  or  by  any  other  means  specified  by  that  section,  for  pur- 

40  poses  such  as  criticism,  comment,  news  reporting,  teaching,  scholar- 


11 


1  ship,  or  research,  is  not  an  infringement  of  copyright.  In  determining 

2  whether  the  use  made  of  a  work  in  any  particular  case  is  a  fair  use 

3  the  factors  to  be  considered  shall  include : 

4  ( 1 )  the  purpose  and  character  of  the  use ; 

5  (2)  the  nature  of  the  copyrighted  work ; 

6  (3)  the  amount  and  substantiality  of  the  portion  used  in  re- 

7  lation  to  the  copyrighted  work  as  a  whole ;  and 

8  (4)  the  effect  of  the  use  upon  the  potential  market  for  or  value 

9  of  the  copyrighted  work. 

10  §108.  Limitations  on  exclusive  rights:  Reproduction  by  libraries 

11  and  archives 

12  (a)  Notwithstanding  the  provisions  of  section  106,  it  is  not  an  in- 

13  fringement  of  copyright  for  a  library  or  archives,  or  any  of  its  em- 

14  ployees  acting  within  the  scope  of  their  employment,  to  reproduce  no 

15  more  than  one  copy  or  phonorecord  of  a  work,  or  distribute  such  copy 

16  or  phonorecord,  under  the  conditions  specified  by  this  section,  if : 

17  (1)  The  reproduction  or  distribution  is  made  without  any  pur- 

18  pose  of  direct  or  indirect  commercial  advantage; 

19  (2)  The  collections  of  the  library  or  archives  are  (i)  open  to  the 

20  public,  or  (ii)  available  not  only  to  researchers  affiliated  with  the 

21  library  or  archives  or  with  the  institution  of  which  it  is  a  part,  but 

22  also  to  other  persons  doing  research  in  a  specialized  field ;  and 

23  (3)  The  reproduction  or  distribution  of  the  work  includes  a 

24  notice  of  copyright. 

25  (b)  The  rights  of  reproduction  and  distribution  under  this  section 

26  apply  to  a  copy  or  phonorecord  of  an  unpublished  work  duplicated  in 

27  facsimile  form  solely  for  purposes  of  preservation  and  security  or  for 

28  deposit  for  research  use  in  another  library'  or  achives  of  the  type  de- 

29  scibed  by  clause  (2)   of  subsection  (a),  if  the  copy  or  phonorecord 

30  reproduced  is  currently  in  the  collections  of  the  library  or  archives. 

31  (c)  The  right  of  reproduction  under  this  section  applies  to  a  copy 

32  or  phonorecord  of  a  published  work  duplicated  in  facsimile  form  solely 

33  for  the  purpose  of  replacement  of  a  copy  or  phonorecord  that  is  dam- 

34  aged,  deteriorating,  lost,  or  stolen,  if  the  library  or  archives  has,  after 

35  a  reasonable  effort,  determined  that  an  unused  replacement  cannot  be 

36  obtained  at  a  fair  price. 

37  (d)  The  rights  of  reproduction  and  distribution  under  this  section 

38  apply  to  a  copy,  made  from  the  collection  of  a  library  or  archives 

39  where  the  user  makes  his  request  or  from  that  of  another  libraiy  or 

40  archives,  of  no  more  than  one  article  or  other  contribution  to  a  copy- 


12 


10 


1  righted  collection  or  periodical  issue,  or  to  a  copy  or  phonorecord  of  a 

2  small  part  of  any  other  copyrighted  work,  if : 

3  (1)  The  copy  becomes  the  property  of  the  user,  and  the  library 

4  or  archives  has  had  no  notice  that  the  copy  would  be  used  for  any 

5  purpose  other  than  private  study,  scholarship,  or  research ;  and 

6  (2)  The  library  or  archives  displays  prominently,  at  the  place 

7  where  orders  are  accepted,  and  includes  on  its  order  form,  a  wam- 

8  ing  of  copyright  in  accordance  with  requirements  that  the  Reg- 

9  ister  of  Copyrights  shall  prescribe  by  regulation. 

10  (e)  The  rights  of  reproduction  and  distribution  under  this  section 

11  apply  to  the  entire  work,  or  to  a  substantial  part  of  it,  made  from  the 

12  collection  of  a  library  or  archives  where  the  user  makes  his  request  or 

13  from  that  of  another  library  or  archives,  if  the  library  or  archives  has 

14  first  determined,  on  the  basis  of  a  reasonable  investigation  that  a  copy 

15  or  phonorecord  of  the  copyrighted  work  cannot  be  obtained  at  a  fair 

16  price,  if : 

17  (1)  The  copy  becomes  the  property  of  the  user,  and  the  library 

18  or  archives  has  had  no  notice  that  the  copy  would  be  used  for  any 

19  purpose  other  than  private  study,  scholarship,  or  research;  and 

20  (2)  The  library  or  archives  displays  prominently,  at  the  place 

21  where  orders  are  accepted,  and  includes  on  its  order  form,  a  wam- 

22  ing  of  copyright  in  accordance  with  requirements  that  the  Register 

23  of  Copyriglits  shall  prescribe  by  regulation. 

24  (f)  Nothing  in  this  section — 

25  (1)    shall  be  construed  to  impose  liability  for  copyright  in- 

26  fringement  upon  a  library  or  archives  or  its  employees  for  the  un- 

27  supervised  use  of  reproducing  equipment  located  on  its  premises, 

28  provided  that  such  equipment  displays  a  notice  that  the  making 

29  of  a  copy  may  be  subject  to  the  copyright  law  ; 

30  (2)  excuses  a  person  who  uses  such  reproducing  equipment  or 

31  who  requests  a  copy  under  subsection  (d)  from  liability  for  copy- 

32  right  infringement  for  any  such  act,  or  for  any  later  use  of  such 

33  f  opy5  if  it  exceeds  fair  use  as  provided  by  section  107 ; 

34  (3)  in  any  way  affects  the  right  of  fair  use  as  provided  by  sec- 

35  tion  107,  or  any  contractual  obligations  assumed  at  any  time  by 

36  the  library  or  archives  when  it  obtained  a  copy  or  phonorecord  of 

37  a  work  in  its  collections ; 

38  (4)  shall  be  construed  to  limit  the  reproduction  and  distribu- 

39  tion  of  a  limited  number  of  copies  and  excerpts  by  a  library  or 


13 


11 

1  archives  of  an  audiovisual  news  program  subject  to  clauses  (1), 

2  (2),  and  (3)  of  subsection  (a). 

3  (g)  The  rights  of  reproduction  and  distribution  under  this  section 

4  extend  to  the  isolated  and  unrelated  reproduction  or  distribution  of  a 

5  single  copy  or  phonorecord  of  the  same  material  on  separate  occasions. 

6  but  do  not  extend  to  cases  where  the  library  or  archives,  or  its 

7  employee : 

8  (1)   is  aware  or  has  substantial  reason  to  believe  that  it  is 

9  engaging  in  the  related  or  concerted  reproduction  or  distribution 

10  of  multiple  copies  or  phonorecords  of  the  same  material,  whether 

11  made  on  one  occasion  or  over  a  period  of  time,  and  whether 

12  intended  for  aggregate  use  by  one  or  more  individuals  or  for  sepa- 

13  rate  use  by  the  individual  members  of  a  group ;  or 

14  (2)  engages  in  the  systematic  reproduction  or  distribution  of 

15  single  or  multiple  copies  or  phonorecords  of  material  described 

16  in  subsection  ( d ) . 

17  (h)  The  rights  of  reproduction  and  distribution  under  this  section 

18  do  not  apply  to  a  musical  work,  a  pictorial,  graphic  or  sculptural  work, 

19  or  a  motion  picture  or  other  audiovisual  work  other  than  an  audio- 

20  visual  work  dealing  with  news,  except  that  no  such  limitation  shall 

21  apply  with  respect  to  rights  granted  by  subsections  (b)  and  (c). 

22  §109.  Limitations  on  exclusive  rights:  Effect  of  transfer  of  par- 

23  ticular  copy  or  phonorecord 

24  (a)  Notwithstanding  the  provisions  of  section  106(3),  the  owner  of 

25  a  particular  copy  or  phonorecord  lawfully  made  under  this  title,  or  any 

26  person  authorized  by  him,  is  entitled,  without  the  authority  of  the 

27  copyright  owner,  to  sell  or  otherwise  dispose  of  the  possession  of  that 

28  copy  or  phonorecord. 

29  (b)  Notwithstanding  the  provisions  of  section  106(5),  the  owner 

30  of  a  particular  copy  lawfully  made  under  this  title,  or  any  person 

31  authorized  by  him,  is  entitled,  without  the  authority  of  the  copyright 

32  owner,  to  display  that  copy  publicly,  either  directly  or  by  the  projec- 

33  tion  of  no  more  than  one  image  at  a  time,  to  viewers  present  at  the 

34  place  where  the  copy  is  located. 

35  (c)  The  privileges  prescribed  by  subsections  (a)  and  (b)  do  not, 

36  unless  authorized  by  the  copyright  owner,  extend  to  any  person  who 

37  has  acquired  possession  of  the  copy  or  phonorecord  from  the  copy- 

38  right  owner,  by  rental,  lease,  loan,  or  otherwise,  without  acquiring 

39  ownership  of  it. 


14 


12 

1  §  110.  Limitations  on  exclusive  rights:  Exemption  of  certain  per- 

2  formances  and  displays 

3  Notwithstanding  the  provisions  of  section  106,  the  following  are  not 

4  infringements  of  copyright : 

5  ( 1 )  performance  or  display  of  a  work  by  instructors  or  pupils 

6  in  the  course  of  face-to-face  teaching  activities  of  a  nonprofit 

7  educational  institution,  in  a  classroom  or  similar  place  devoted 

8  to  instruction,  unless,  in  the  case  of  a  motion  picture  or  other 

9  audiovisual  work,  the  performance,  or  the  display  of  individual 

10  images,  is  given  by  means  of  a  copy  that  was  not  lawfully  made 

11  under  this  title,  and  that  the  person  responsible  for  the  perform- 

12  ance  knew  or  had  reason  to  believe  was  not  lawfully  made  ; 

1^  (2)  performance  of  a  nondramatic  literary  or  musicial  work 

1*  or  display  of  a  work,  by  or  in  the  course  of  a  transmission,  if : 

1^  (A)  the  performance  or  display  is  a  regular  part  of  the 

systematic  instructional  activities  of  a  governmental  body  or 
l  *  a  nonprofit  educational  institution ;  and 

"  (B)  the  performance  or  display  is  directly  related  and  of 

material  assistance  to  the  teaching  content  of  the  transmis- 
sion ;  and 

(C)  the  transmission  is  made  primarily  for : 

22 

(i)  reception  in  classrooms  or  similar  places  normally 

23 


19 

20 


24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 


devoted  to  instruction,  or 

(ii)  reception  by  persons  to  whom  the  transmission  is 
directed  because  their  disabilities  or  other  special  circum- 
stances prevent  their  attendance  in  classrooms  or  similar 
places  normally  devoted  to  instruction,  or 

(iii)  reception  by  officers  or  employees  of  governmen- 
tal bodies  as  a  part  of  their  official  duties  or  employ- 
ment; 

(3)  performance  of  a  nondramatic  literary  or  musical  work 
or  of  a  dramatico-musical  work  of  a  religious  nature,  or  display  of 
a  work,  in  the  course  of  services  at  a  place  of  worship  or  other 
religious  assembly  ; 

(4)  performance  of  a  nondramatic  literary  or  musical  work 
otherwise  than  in  a  transmission  to  the  public  without  any  pur- 
pose of  direct  or  indirect  commercial  advantage  and  without 
payment  of  any  fee  or  other  compensation  for  the  performance 
to  any  of  its  performers,  promoters,  or  organizers,  if : 

(A)   there  is  no  direct  or  indirect  admission  charge,  or 


15 


13 

1  (B)  the  proceeds,  after  deducting  the  reasonable  costs  of 

2  producing  the  performance,  are  used  exclusively  for  educa- 

3  tional,  religious,  or  charitable  purposes  and  not  for  private 

4  financial  gain,  except  where  the  copyright  owner  has  served 

5  notice  of  his  objections  to  the  performance  under  the  follow- 

6  ing  conditions: 

7  (i)  The  notice  shall  be  in  writing  and  signed  by  the 

8  copyright  owner  or  his  duly  authorized  agent;  and 

9  (ii)  The  notice  shall  be  served  on  the  person  respon- 

10  sible  for  the  performance  at  least  seven  days  before  the 

11  date  of  the  performance,  and  shall  state  the  reasons  for 

12  his  objections ;  and 

13  (iii)  The  notice  shall  comply,  in  form,  content,  and 
1^  manner  of  service,  with  requirements  that  the  Register 
15                            of  Copyrights  shall  prescribe  by  regulation  ; 

1^  (5)   communication  of  a  transmission  embodying  a  performance 

1'  or  display  of  a  work  by  the  public  reception  of  the  transmission 

1°  on  a  single  receiving  apparatus  of  a  kind  commonly  used  in  pri- 

19  vate  homes,  unless : 

(A)  a  direct  charge  is  made  to  see  or  hear  the  transmis- 
sion; or 

(B)  the  transmission  thus  received  is  further  transmitted 
23                    to  the  public ; 

2^  (6)   performance  of  a  nondramatic  musical  work  in  the  course 

■^5  of  an  annual  agricultural  or  liorticultural  fair  or  exhibition  con- 

"^"  ducted  by  a  governmental  body  or  a  nonprofit  agricultural  or  hor- 

■^ '  ticultural  organization ; 

2°  (7)  performance  of  a  nondramatic  musical  work  by  a  vending 

establishment  open  to  the  public  at  large  without  any  direct  or 
indirect  admission  charge,  where  the  sole  purpose  of  the  perform- 
ance is  to  promote  the  retail  sale  of  copies  or  phonorecords  of  the 
work  and  the  performance  is  not  transmitted  beyond  the  place 
^  where  the  establishment  is  located. 

^        §111.  Limitations  on  exclusive  rights:  Secondary  transmissions 
(a)   Certain  Secondary  Transmissions  Exempted. — -The  second- 
ary  transmission  of  a  primary  transmission  embodying  a  performance 
or  display  of  a  work  is  not  an  infringement  of  copyright  if : 

(1)  the  secondary  transmission  is  not  made  by  a  cable  system, 
and  consists  entirely  of  the  relaying,  by  the  management  of  a 


20 
21 
22 


29 
30 


38 
39 


hotel,  apartment  house,  or  similar  establishment,  of  signals  trans- 


1 


16 


14 


mitted  by  a  broadcast  station  licensed  by  the  Federal  Communica- 

2  tions  Commission,  within  the  local  service  area  of  such  station,  to 

3  the  private  lodgings  of  guests  or  residents  of  such  establishment, 

4  and  no  direct  charge  is  made  to  see  or  hear  the  secondary  trans- 

5  mission;  or 

6  (2)  the  secondary  transmission  is  made  solely  for  tlie  purpose 
'  and  under  the  conditions  specified  by  clause  (2)  of  section  110;  or 

8  (3)   the  secondary  transmission  is  made  by  a  common,  contract, 

9  or  special  carrier  who  has  no  direct  or  indii-ect  control  over  the 

10  content  or  selection  of  the  primary  transmission  or  over  tlie  par- 

11  ticular  recipients  of  the  secondary  transmission,  and  whose  activ- 

12  ities  with  respect  to  the  secondary  transmission  consist  solely  of 

13  providing  wires,  cables,  or  other  communications  channels  for  the 
1^  use  of  others :  Provided,  That  the  provisions  of  this  clause  extend 
15  only  to  the  activities  of  said  carrier  with  respect  to  secondary 
1"  transmissions  and  do  not  exempt  from  liability  the  activities  of 
1'  others  with  respect  to  their  own  primai-y  or  secondary  transmis- 
1°  sion;  or 

1^  (4)  the  secondary  transmission  is  not  made  by  a  cable  system  but 

2^  is  made  by  a  governmental  body,  or  other  nonprofit  organization, 

"1  without  any  purpose  of  direct  or  indirect  commercial  advantage, 

22  and  without  charge  to  the  recipients  of  the  secondary  transmission 

^^  other  than  assessments  necessary  to  defray  tlie  actual  and  reason- 

2*  able  costs  of  maintaining  and  operating  the  secondary  transmis- 

25  sion  service. 

2"  (b)   Secondary  Transmissiox  of  Primary  Transmissiox  to  Con- 

2'  TROLLED  Group. — Notwithstanding  the  provisions  of  subsections  (a) 

2o  and  (c),  the  secondary  transmission  to  tlie  public  of  a  primary  trans- 

2"  mission  embodying  a  jjerformance  or  display  of  a  work  is  actionable  as 

''^  an  act  of  infringement  under  section  501,  and  is  fully  subject  to  the 

^1  remedies  pi'ovided  by  sections  502  througli  5(l(;,  if  the  jirimary  trans- 

'^2  mission  is  not  made  for  reception  by  tlic  public  at  large  but  is  con- 

''^  trolled  and  limited  to  reception  by  particulai'  lucuibers  of  the  pul)lic. 

^^  (c)   Secoxdary  Traxsmissioxs  by  Cable  Systems. — 

(1)   Subject  to  the  provisions  of  clause  (2)  of  this  subsection,  sec- 
ondary transmissions  to  the  jDublic  by  a  cable  system  of  a  i^rimary 

*"  ti-ansmission  made  by  a  broadcast  station  licensed  by  the  Federal 
Communications  Commission  and  embodying  a  performance  or  dis- 
play of  a  work  shall  be  subject  to  compulsory  licensing  upon  compli- 

*0  ance  with  the  requirements  of  subsection  (d)  in  the  following  cases: 


17 


15 

1  (A)  Where  the  signals  comprising  the  primary  transmission 

2  are  exclusively  aural  and  the  secondai-y  ti-ansmission  is  permis- 

3  sible  under  the  rules,  regulations  or  authorizations  of  the  Federal 

4  Communications  Commission ;  or 

5  (B)  Where  the  community  of  the  cable  system  is  in  whole  or 
g  in  part  within  the  local  service  area  of  the  primary  transmitter; 

7  or 

8  (C)  Where  the  carriage  of  the  signals  comprising  the  second- 

9  ary  transmission  is  permissible  under  the  rules,  regulations  or 

10  authorizations  of  the  Federal  Communications  Commission. 

11  (2)   Notwithstanding  the  provisions  of  clause  (1)  of  this  subsection, 

12  the  secondary  transmission  to  the  public  by  a  cable  system  of  a  pri- 

13  mary  transmission  made  by  a  broadcast  station  licensed  by  the  Fed- 
14:  eral  Communications  Commission  and  embodying  a  performance  or 

15  display  of  a  work  is  actionable  as  an  act  of  infringement  under  section 

16  501,  and  is  fully  subject  to  the  remedies  provided  by  sections  502 

17  through  506,  in  the  following  cases : 

18  (A)  Where  the  carriage  of  the  signals  comprising  the  second- 

19  ary  transmission  is  not  permissible  under  the  rules,  regulations 

20  or  authorizations  of  the  Federal  Communications  Commission ;  or 

21  (B)  IVli ere  the  cable  system,  at  least  one  month  before  the  date 

22  of  the  secondary  transmission,  has  not  recorded  the  notice  speci- 

23  fied  by  subsection  (d) . 

24  (d)  Compulsory  License  foe  Secondary  Transmissions  by  Cable 

25  Systems. — 

26  (1)   For  any  secondary  transmission  to  be  subject  to  compulsory 

27  licensing  under  subsection  (c) ,  the  cable  system  shall  at  least  one  month 

28  before  the  date  of  the  secondary  transmission  or  within  30  days  after 

29  the  enactment  of  this  Act,  whichever  date  is  later,  record  in  the  Copy- 

30  right  Office,  a  notice  including  a  statement  of  the  identity  and  address 

31  of  the  person  who  owns  or  operates  the  secondary  transmission  service 

32  or  has  power  to  exercise  primary  control  over  it  together  with  the 

33  name  and  location  of  the  primary  transmitter,  or  primary  transmit- 

34  ters  and  thereafter,  from  time  to  time,  such  further  information  as  the 

35  Register  of  Copyrights  shall  prescribe  by  regulation  to  carry  out  the 

36  jiurposes  of  this  clause. 

37  (2)  A  cable  system  whose  secondary  transmissions  have  been  subject 

38  to  compulsory  licensing  under  subsection  (c)  shall,  during  the  months 

39  of  January,  April,  July,  and  October,  deposit  with  the  Register  of 


18 


16 

1  Copyrights,  in  accordance  with  requirements  that  the  Register  shall 

2  prescribe  by  regulation — 

3  (A-)   A  statement  of  account,  covering  the  tliree  months  next 

4  preceding,  specifying  the  number  of  channels  on  which  the  cable 

5  system  made  secondary  transmissions  to  its  subscribers,  the  names 

6  and  locations  of  all  primary  transmitters  whose  transmissions 

7  were  further  transmitted  by  the  cable  system,  the  total  number 

8  of  subscribers  to  the  cable  system,  and  the  gross  amounts  paid  to 

9  the  cable  system  irrespective  of  soiu-ce  and  separate  statements  of 

10  the  gross  revenues  paid  to  the  cable  system  for  advertising,  leased 

11  channels,   and   cable-casting  for  which   a   jier-program  or  per- 

12  channel  charge  is  made  and  by  subscribers  for  the  basic  service  of 

13  providing  secondary  transmissions  of  primary  broadcast  trans- 
it mitters ;  and 

15  (B)  A  total  royalty  fee  for  the  period  covered  by  the  state- 
ly ment,  computed  on  the  basis  of  specified  percentages  of  the  gross 
l*"^  receipts  from  subscribers  to  the  cable  service  during  said  period 

18  for  the  basic  service  of  providing  secondary  transmissions  of 

19  primary  broadcast  transmitters,  as  follows : 

20  (i)   i/o  percent  of  any  gross  receipts  up  to  $40,000 ; 

21  (ii)   1  percent  of  any  gross  receipts  totalling  more  than 

22  $40,000  but  not  more  than  $80,000 ; 
(iii)   11/2  percent  of  any  gross  receipts  totalling  more  than 


23 


29 
30 


24  $80,000,  but  not  more  than  $120.000 ; 

25  (iv)   2  percent  of  any  gross  receipts  totalling  more  than 

26  $120,000.  but  not  more  than  $160,000;  and 

27  (v)  214  percent  of  any  gross  receipts  totalling  more  than 

28  $160,000. 
(3)  The  royalty  fees  thus  deposited  shall  be  distributed  in  accord- 
ance with  the  following  procedures : 

•^1  (A)  During  the  month  of  July  in  each  year,  every  person  claiming 

3"  to  be  entitled  to  compulsory  license  fees  for  secondary  transmissions 
33  made  during  the  preceding  twelve-month  period  shall  file  a  claim 
'^'*  with  the  Register  of  Copyrights,  in  accordance  with  requirements  that 
^5  the  Register  shall  prescribe  by  regulation.  Xot withstanding  any  pro- 
36  visions  of  the  antitrust  laws  (the  Act  of  Octobei'  15.  1914.  38  Stat.  730. 
3'  and  any  amendments  of  such  laws),  for  purposes  of  this  clause  any 
claimants  may  agree  among  themselves  as  to  the  proportionate  divi- 
sion of  compulsory  licensing  fees  among  them,  may  lump  their  claims 


38 
39 


19 


17 

1  together  and  file  them  jointly  or  as  a  single  claim,  or  may  designate 

2  a  common  agent  to  receive  payment  on  their  behalf. 

3  (B)  After  the  first  day  of  August  of  each  year,  the  Register  of 

4  Copyrights  shall  determine  whether  there  exists  a  controversy  con- 

5  ceming  the  statement  of  account  or  the  distribution  of  royalty  fees.  If 

6  he  determines  that  no  such  controversy  exists,  he  shall,  after  deduct- 

7  ing  his  reasonable  administrative  costs  under  this  section,  distribute 

8  such  fees  to  the  copyright  owners  entitled,  or  to  their  designated 
^  agents.  If  he  finds  the  existence  of  a  controversy  he  shall  certify  to 

10  that  fact  and  proceed  to  constitute  a  panel  of  the  Copyright  Royalty 

11  Tribunal  in  accordance  with  section  803.  In  such  cases  the  reasonable 

12  administrative  costs  of  the  Register  under  this  section  shall  be  de- 
1^  ducted  prior  to  distribution  of  the  royalty  fee  by  the  tribunal. 

1*  (C)  During  the  pendency  of  any  proceeding  under  this  subsection, 

1^      the  Register  of  Copyrights  or  the  Copyright  Royalty  Tribunal  shall 
1"      withhold  from  distribution  an  amount  sufficient  to  satisfy  all  claims 
1'       with  respect  to  which  a  controversy  exists,  but  shall  have  discretion 
1°      to  proceed  to  distribute  any  amounts  that  are  not  in  controversy. 
1^  (e)  Definitions. — 

As  used  in  this  section,  the  following  terms  and  their  variant  forms 
■^1      mean  the  following : 

^^  A  "primary  transmission"  is  a  transmission  made  to  the  public 

2^  by  the  transmitting  facility  whose  signals  are  being  received  and 

further  transmitted  by  the  secondary  transmission  service,  regard- 
less of  where  or  when  the  performance  or  display  was  first 
transmitted. 


25 
26 


2'  A  "secondary  transmission"  is  the  further  transmitting  of  a 

primary  transmission  simultaneously  with  the  primary  trans- 
mission or  nonsimultaneously  with  the  primary  transmission  if  by 
a  "cable  system"  not  located  in  whole  or  in  part  within  the  bound- 

^1  ary  of  the  forty-eight  contiguous  States,  Hawaii,  or  Puerto  Rico : 

Provided^  hoxoever.  That  a  nonsimultaneous  further  transmission 
by  a  cable  system  located  in  a  television  market  in  Hawaii  of  a 
primary  transmission  shall  be  deemed  to  be  a  secondary  trans- 
mission if  such  further  transmission  is  necessary  to  enable  the 
cable  system  to  carry  the  full  complement  of  signals  allowed  it 

^'  under  the  rules  and  regulations  of  the  Federal  Communciations 

°'°  Commission. 


28 
29 
30 


32 
33 
34 
35 
36 


20 


18 


1  A  "cable  system"  is  a  facility,  located  in  any  State,  Territory, 

2  Trust  Territory  or  Possession  that  in  whole  or  in  part  i-eceives 

3  signals  transmitted  or  programs  broadcast  by  one  or  more  tele- 

4  vision  broadcast  stations  licensed  by  the  Federal  Communications 

5  Commission  and  makes  secondary  transmissions  of  such  signals 

6  or  programs  by  wires,  cables,  or  other  communications  channels 

7  to  subscribing  members  of  the  public  who  pay  for  such  service. 

8  For  purposes  of  determining  the  royalty  fee  under  subsection 

9  (d)  (2)  (B),  two  or  more  cable  systems  in  contiguous  communi- 

10  ties  under  common  ownership  or  control  or  operating  from  one 

11  headend  shall  be  considered  as  one  system. 

12  The  "local  service  area  of  a  primary  transmitter"  comprises 

13  the  area  in  which  a  television  broadcast  station  is  entitled  to 

14  insist  upon   its  signal   being  retransmitted  by   a  cable  system 

15  pursuant  to  the  rules  and  regulations  of  the  Federal  Communica- 

16  tions  Commission. 

17  §112.  Limitations  on  exclusive  rights:  Ephemeral  recordings 

18  (a)  Notwithstanding  the  provisions  of  section  106,  and  except  in  the 

19  case  of  a  motion  picture   or  other  audiovisual  work,  it  is  not  an 

20  infringement  of  copyright  for  a  transmitting  organization  entitled  to 

21  transmit  to  the  public  a  performance  or  display  of  a  work,  under  a 

22  license  or  transfer  of  the  copyright  or  under  the  limitations  on  exclu- 

23  sive  rights  in  sound  recordings  specified  by  section  114(a),  to  make 

24  no  more  than  one  copy  or  phonorecord  of  a  particular  transmission 

25  program  embodying  the  performance  or  display,  if — 

26  (1)  the  copy  or  phonorecord  is  retained  and  used  solely  by  the 

27  transmitting  organization  that  made  it,  and  no  further  copies  or 

28  phonorecords  are  reproduced  from  it ;  and 

29  (2)  the  copy  or  phonorecord  is  used  solely  for  the  transmitting 

30  organization's  own  transmissions  within  its  local  service  area,  or 

31  for  purposes  of  archival  preservation  or  security ;  and 

32  (3)  unless  preserved  exclusively  for  archival  purposes,  the  copy 

33  or  phonorecord  is  destroyed  within  six  months  from  the  date  the 

34  transmission  program  was  first  transmitted  to  the  public. 

35  (b)  Notwithstanding  the  provisions  of  section  106,  it  is  not  an  in- 

36  fringement  of  copyright  for  a  governmental  body  or  other  nonprofit 

37  organization  entitled  to  transmit  a  performance  or  display  of  a  work, 

38  under  section  110(2)  or  under  the  limitations  on  exclusive  rights  in 

39  sound  recordings  specified  by  section  114(a),  to  make  no  more  than 


21 


19 


1  thirty  copies  or  phonorecords  of  a  particular  transmission  program 

2  embodying  the  performance  or  display,  if — 

3  ( 1 )  no  further  copies  or  phonorecords  are  reproduced  from  the 

4  copies  or  phonorecords  made  under  this  clause ;  and 

5  (2)  except  for  one  copy  or  phonorecord  that  may  be  preserved 

6  exclusively  for  archival  purposes,  the  copies  or  phonorecords  are 

7  destroyed  within  seven  years  from  the  date  the  transmission  pro- 

8  gram  was  first  transmitted  to  the  public. 

9  (c)  Notwithstanding  the  provisions  of  section  106,  it  is  not  an  in- 

10  fringement  of  copyright  for  a  governmental  body  or  other  nonprofit 

11  organization  to  make  for  distribution  no  more  than  one  copy  or  phono- 

12  record  for  each  transmitting  organization  specified  in  clause  (2)  of  this 

13  subsection  of  a  jjarticular  transmission  program  embodying  a  perform- 

14  ance  of  a  nondramatic  musical  work  of  a  religious  nature,  or  of  a  sound 

15  recording  of  such  a  musical  work,  if — 

16  (1)  there  is  no  direct  or  indirect  charge  for  making  or  dis- 

17  tributing  any  such  copies  or  phonorecords ;  and 

18  (2)  none  of  such  copies  or  phonorecords  is  used  for  any  jDer- 

19  formance  other  than  a  single  transmission  to  the  public  by  a  trans- 

20  mitting  organization  entitled  to  transmit  to  the  public  a  perform- 

21  ance  of  the  work  under  a  license  or  transfer  of  the  copyright ;  and 

22  (3)  except  for  one  copy  or  plionorecord  that  may  be  preserved 

23  exclusively  for  archival  purposes,  the  copies  or  phonorecords  are 

24  all  destroyed  within  one  year  from  the  date  the  transmission  pro- 

25  gram  was  first  transmitted  to  the  public. 

26  (d)  The  transmission  program  embodied  in  a  copy  or  phonorecord 

27  made  under  this  section  is  not  subject  to  protection  as  a  derivative 

28  work  under  this  title  except  Avith  the  express  consent  of  the  owners 

29  of  copyright  in  the  pre-existing  works  employed  in  the  program. 

30  §  113.  Scope  of  exclusive  rights  in  pictorial,  graphic,  and  sculp- 

31  tural works 

32  (a)  Subject  to  the  provisions  of  clauses  (1)  and  (2)  of  this  subsec- 

33  tion,  the  exclusive  right  to  reproduce  a  copyrighted  pictorial,  graphic, 

34  or  sculptural  work  in  copies  under  section  106  includes  the  right  to 

35  reproduce  the  work  in  or  on  any  kind  of  article,  whether  useful  or 

36  otherwise. 

37  (1)  This  title  does  not  afford,  to  the  owner  of  copyright  in  a 

38  Avork  that  portrays  a  useful  article  as  such,  any  greater  or  lesser 

39  rights  with  respect  to  the  making,  distribution,  or  display  of  the 

40  useful  article  so  portrayed  than  those  afforded  to  such  works 


22 


20 

1  under  the  law,  whether  title  17  of  the  common  law  or  statutes  of 

2  a  State,  in  effect  on  December  .'U.  1976.  as  held  applicable  and 

3  construed  by  a  court  in  an  action  brought  under  this  title. 

4  (2)  In  the  case  of  a  work  lawfully  reproduced  in  useful  articles 

5  that  have  been  offered  for  sale  or  other  distribution  to  the  public, 

6  copyright  does  not  include  any  right  to  prevent  the  making,  dis- 

7  tribution,  or  display  of  pictures  or  photographs  of  such  articles 

8  in  connection  with  advertisements  or  commentaries  related  to  the 

9  distribution  or  display  of  such  articles,  or  in  connectioi  with  news 

10  reports. 

11  (b)  When  a  pictorial,  graphic,  or  sculptural  work  in  which  copy- 

12  right  subsists  under  this  title  is  utilized  in  an  original  ornamental 

13  design  of  a  useful  article,  by  the  copyright  proprietor  or  under  an 

14  express  license  from  him,  the  design  shall  be  eligible  for  protection 

15  under  the  provisions  of  title  III  of  this  Act. 

16  (c)  Protection  under  this  title  of  a  work  in  which  copyright  subsists 

17  shall  terminate  with  respect  to  its  utilization  in  useful  articles  when- 

18  ever  the  copyright  proprietor  has  obtained  registration  of  an  orna- 

19  mental  design  of  a  useful  article  embodying  said  work  under  the  pro- 

20  visions  of  title  III  of  this  Act.  Unless  and  until  the  copyright  pro- 

21  prietor  has  obtained  such  registration,  the  copyright  pictorial,  graphic, 

22  or  sculptural  work  shall  continue  in  all  respects  to  be  covered  by  and 

23  subject  to  the  protection  afforded  by  the  copyright  subsisting  under 

24  this  title.  Nothing  in  this  section  shall  be  deemed  to  create  any  addi- 

25  tional  rights  or  protection  under  this  title. 

26  (d)  Nothing  in  this  section  shall  affect  any  right  or  remedy  held 

27  by  any  person  under  this  title  in  a  work  in  which  copyright  was  sub- 

28  sisting  on  the  effective  date  of  title  II  of  this  Act,  or  with  respect  to 

29  any  utilization  of  a  copyrighted  work  other  than  in  the  design  of  a 

30  useful  article. 

31  §  114.  Scope  of  exclusive  rights  in  sound  recordings 

32  (a)  The  exclusive  rights  of  the  owner  of  copyright  in  a  sound  record- 

33  ing  are  limited  to  the  rights  specified  by  clauses  (1)  and  (3)  of  sec- 

34  tion  106,  and  do  not  include  any  right  of  performance  under  section 

35  106(4). 

36  (b)  The  exclusive  riglit  of  the  owner  of  copyright  in  a  sound  record- 

37  ing  to  reproduce  it  under  section  106(1)   is  limited  to  the  right  to 

38  duplicate  the  sound  recording  in  the  form  of  plionorecords  that  directly 

39  or  indirectly  recapture  the  actual  sounds  fixed  in  the  recording.  This 

40  right  does  not  extoiid  to  the  making  or  duplication  of  anotlior  soimd 


23 


21 

1  recordinof  that  is  an  independent  fixation  of  other  sounds,  even  though 

2  such   sounds   imitate  or   simulate   those   in   the   copyrighted   sound 

3  recording. 

4  (c)  This  section  does  not  limit  or  impair  the  exclusive  right  to  per- 

5  form  publicly,  by  means  of  a  phonorecord,  any  of  the  works  specified 

6  by  section  106  (4). 

7  §115.  Scope  of  exclusive  rights  in  nondramatic  musical  works: 

8  Compulsory  license  for  making  and  distributing  phono- 

9  records 

10  In  the  case  of  nondramatic  musical  works,  the  exclusive  rights  pro- 

11  vided  by  clauses  (1)  and  (3)  of  section  106,  to  make  and  to  distribute 

12  phonorecords  of  such  works,  are  subject  to  compulsory  licensing  under 

13  the  conditions  specified  by  this  section. 

14  (a)  Availability  and  Scope  of  Compulsory  License. — 

15  (1)  When  nhonorecords  of  a  nondramatic  musical  work  have 

16  been  distributed  to  the  public  under  the  authority  of  the  copyright 

17  owner,  any  other  person  may,  by  complying  with  the  provisions 

18  of  this  section,  obtain  a  compulsory  license  to  make  and  distribute 

19  phonorecords  of  the  work.  A  person  may  obtain  a  compulsory 

20  license  only  if  his  primary  purpose  in  making  phonorecords  is  to 

21  distribute  them  to  the  public  for  private  use.  A  person  may  not 

22  obtain  a  compulsory  license  for  use  of  the  work  in  the  duplication 

23  of  a  sound  recording  made  by  another. 

24  (2)  A  compulsory  license  includes  the  privilege  of  making  a 

25  musical  arrangement  of  the  work  to  the  extent  necessary  to  con- 

26  form  it  to  the  style  or  manner  of  interpretation  of  the  perform- 

27  ance  involved,  but  the  arrangement  shall  not  change  the  basic 

28  melody  or  fundamental  character  of  the  work,  and  shall  not  be 
2^  subject  to  protection  as  a  derivative  work  under  this  title,  except 

30  with  the  express  consent  of  the  copyright  owner. 

31  (b)  Notice  of  Intention  to  Obtain  Comptjlsory  License  ;  Desig- 

32  nation  of  Owner  of  Performance  Right. — 

33  (1)  Any  pei-son  who  wishes  to  obtain  a  compulsory  license 
under  this  section  shall,  before  or  within  thirty  days  after  making, 


34 


35  and  before  distributing  any  phonorecords  of  the  work,  serve  notice 

36  of  his  intention  to  do  so  on  the  copyright  owner.  If  the  registra- 

37  tion  or  other  public  records  of  the  Copyright  Office  do  not  identify 

38  the  copyright  owner  and  include  an  address  at  which  notice  can 
3^  be  served  on  him,  it  shall  be  sufficient  to  file  the  notice  of  intention 
^  in  the  Copyright  Office.  The  notice  shall  comply,  in  form,  con- 


32 
33 


24 


22 


1  tent,  and  manner  of  service,  with  requirements  that  the  Eegister 

2  of  Copyrights  shall  prescribe  by  regulation. 

3  (2)  If  the  copyright  owner  so  requests  in  writing  not  later  than 

4  ten  days  after  service  or  filing  of  the  notice  required  by  clause  ( 1 ) , 

5  the  person  exercising  the  compulsory  license  shall  designate,  on 

6  a  label  or  container  accompanying  each  phonorecord  of  the  work 

7  distributed  by  him,  and  in  the  form  and  manner  that  the  Eegister 

8  of  Copyrights  shall  prescribe  by  regulation,  the  name  of  the 

9  copyright  owner  or  his  agent  to  whom  royalties  for  public  per- 

10  formance  of  the  work  are  to  be  paid. 

11  •       (3)  Failure  to  serve  or  file  the  notice  required  by  clause  (1),  or 

12  to  designate  the  name  of  the  owner  or  agent  as  required  by  clause 

13  (2),  forecloses  the  possibility  of  a  compulsory  license  and,  in  the 

14  absence  of  a  negotiated  license,  renders  the  making  and  distribu- 

15  tion  of  phonorecords  actionable  as  acts  of  infringement  under 

16  section  501  and  fully  subject  to  the  remedies  provided  by  sections 

17  502  through  506. 

18  (c)  RoTALTT  Payable  Under  Compulsory  License. — 

19  (1)   To  be  entitled  to  receive  royalties  under  a  compulsory 

20  license,  the  copyright  owner  must  be  identified  in  the  registration 

21  or  other  public  records  of  the  Copyright  Office.  The  owner  is 

22  entitled  to  royalties  for  phonorecords  manufactured  and  distrib- 

23  uted  after  he  is  so  identified  but  he  is  not  entitled  to  recover  for 

24  any  phonorecords  previously  manufactured  and  distributed. 

25  (2)   Except  as  provided  by  clause   (1),  the  royalty  under  a 

26  compulsory  license  shall  be  payable  for  every  phonorecord  manu- 

27  factured  and  distributed  in  accordance  with  the  license.  With 

28  respect  to  each  work  embodied  in  the  phonorecord,  the  royalty 

29  shall  be  either  three  cents,  or  three  quarter  cent  per  minute  of 

30  playing  time  or  fraction  thereof,  whichever  amount  is  larger. 

31  (3)  Royalty  payments  shall  be  made  on  or  before  the  twentieth 
day  of  each  month  and  shall  include  all  royalties  for  the  month 
next  preceding.  Each  monthly  payment  shall  be  accompanied 

"^  by  a  detailed  statement  of  account,  which  shall  be  certified  by  a 

35  Certified  Public  Accountant  and  comply  in  form,  content,  and 

36  manner  of  certification  with  I'equirements  that  the  Register  of 

37  Copyrights  shall  prescribe  by  regulation. 
(4)  If  the  copyright  owner  does  not  receive  the  monthly  pay- 
ment and  statement  of  account  when  due,  he  may  give  written 

40  notice  to  the  licensee  that,  unless  the  default  is  remedied  within 


38 
39 


25 


23 

1  thirty  daj's  from  the  date  of  the  notice,  the  compulsory  license 

2  will  be  automatically  terminated.  Such  termination  renders  the 

3  making  and  distribution  of  all  phonorecords,  for  wliich  the  roy- 

4  alty  had  not  been  paid,  actionable  as  acts  of  infringement  under 

5  section  501  and  fully  subject  to  the  remedies  provided  by  sections 

6  502  through  506. 

7  §116.  Scope  of  exclusive  rights  in  nondramatic  musical  works: 

8  Public  performances  by  means  of  coin-operated  phono- 

9  record  players 

10  (a)    Limitation   on   Exclusive  Right. — In  the  case  of  a  non- 
11  dramatic  musical  work  embodied  in  a  phonorecord,  the  exclusive  right 

12  under  clause  (4)  of  section  106  to  perform  the  work  publicly  by  means 

13  of  a  coin-operated  phonorecord  player  is  limited  as  follows: 

14  (1)  The  proprietor  of  the  establishment  in  which  the  public 

15  performance  takes  place  is  not  liable  for  infringement  with  re- 

16  spect  to  such  public  performance  unless : 

17  (A)  he  is  the  operator  of  the  phonorecord  player ;  or 

18  (B)  he  refuses  or  fails,  within  one  month  after  receipt  by 

19  registered  or  certified  mail  of  a  request,  at  a  time  during 

20  which  the  certificate  is  required  by  subclause  (1)  (C)  of  sub- 

21  section  (b)  is  not  affixed  to  the  phonorecord  player,  by  the 

22  copyright  owner,  to  make  full  disclosure,  by  registered  or 

23  certified  mail,  of  the  identity  of  the  operator  of  the  phono- 

24  record  player. 

25  (2)  The  operator  of  the  coin-operated  phonorecord  player  may 

26  obtain  a  compulsory  license  to  perform  the  work  publicly  on  that 

27  phonorecord  player  by  filing  the  application,  affixing  the  certifi- 

28  cate,  and  paying  the  royalties  provided  by  subsection   (b). 

29  (b)  Recordation  of  Coin-Operated  Phonorecord  Player,  Affixa- 

30  tion  of  Certificate,  and  Royalty  Payable  Under  Compulsory 

31  License. — 
(1)  Any  operator  who  wishes  to  obtain  a  compulsory  license 

for  the-  public  performance  of  works  on  a  coin-operated  phono- 

34  record  player  shall  fulfill  the  following  requirements: 

35  (A)  Before  or  within  one  month  after  such  performances 
are  made  available  on  a  particular  phonorecord  player,  and 


32 
33 


36 


3'  during  the  month  of  January  in  each  succeeding  year  that 

3^  such  performances   are   made   availal)le   in   that  particular 

39  phonorecord  player,  he  shall  file  in  the  Copyright  Office,  in 

^^  accordance  with  requirements  that  the  Register  of  Copyrights 


cT-Toc     r-\    _    nc 


26 


24 


1  shall  prescribe  by  regulation,  an  application  containing  the 

2  name  and  address  of  the  operator  of  the  phonorecord  player 

3  and  the  manufacturer  and  serial  number  or  other  explicit 

4  identification  of  the  phonorecord  player,  and  in  addition  to 

5  the  fee  prescribed  by  clause  (9)  of  section  T08(a),  he  shall 

6  deposit  with  the  Register  of  Copyrights  a  royalty  fee  for 

7  the  current  calendar  year  of  $8  for  that  particular  phono- 

8  record  player.  If  such  performances  are  made  available  on  a 

9  particular  phonorecord  player  for  the  first  time  after  July  1 

10  of  any  year,  the  royalty  fee  to  be  deposited  for  the  remainder 

11  of  that  year  shall  be  $4.00. 

12  (B)  Within  twenty  days  of  receipt  of  an  application  and  a 

13  royalty  fee  pursuant  to  subclause  ( A) ,  the  Register  of  Copy- 

14  rights  shall  issue  to  the  applicant  a  certificate  for  the  phono- 

15  record  player. 

16  (C)  On  or  before  March  1  of  the  year  in  which  the  certifi- 

17  cate  prescribed  by  subclause  (B)  of  this  clause  is  issued,  or 

18  within  ten  days  after  the  date  of  issue  of  the  certificate,  the 

19  operator  shall  affix  to  the  particular  phonorecord  player,  in  a 

20  position  where  it  can  be  readily  examined  by  the  public,  the 

21  certificate,  issued  by  the  Register  of  Copyrights  under  sub- 

22  clause  (B),  of  the  latest  application  made  by  him  under  sub- 

23  clause  (A)  of  tins  clause  with  respect  to  that  phonorecord 

24  player. 

25  (2)  Failure  to  file  the  application,  to  affix  the  certificate  or  to 

26  pay  the  royalty  required  by  clause  (1)  of  this  subsection  renders 

27  the  public  performance  actionable  as  an  act  of  infringement  under 

28  section  501  and  fully  subject  to  the  remedies  provided  by  section 

29  502  through  506. 

30  (c)  Distribution  OF  RoYAi/TTES. — 

31  (1)  During  the  month  of  January  in  each  year,  every  pei-son 

32  claiming  to  be  entitled  to  compulsory  license  fees  under  this  section 

33  for  performances  during  the  preceding  twelve-month  period  shall 

34  file  a  claim  with  the  Register  of  Copyrights,  in  accordance  with 

35  requirements  that  the  Register   shall   prescribe   by   regidation. 

36  Such  claim  shall  include  an  agreement  to  accept  as  final,  except  as 

37  provided  in  section  809  of  this  title,  the  determination  of  the  Copy- 

38  right  Royalty  Tribunal  in  any  controversy  concerning  the  distri- 

39  bution  of  royalty  fees  deposited  under  subclause  (a)  of  subsec- 

40  tion  (b)  (1)  of  this  section  to  which  the  claimant  is  a  party.  Not- 


27 


25 

1  withstanding  any  provisions  of  the  antitrust  laws  (the  Act  of 

2  October  15,  1914,  38  Stat.  730,  and  any  amendments  of  any  such 

3  laws),  for  purposes  of  this  subsection  any  claimants  may  agree 

4  among  themselves  as  to  the  proportionate  division  of  compulsory 

5  licensing  fees  among  them,  may  lump  their  claims  together  and 

6  file  them  jointly  or  as  a  single  claim,  or  many  designate  a  common 

7  agent  to  receive  payment  on  their  behalf. 

8  (2)  After  the  first  day  of  October  of  each  year,  the  Register  of 

9  Copyrights  shall  determine  whether  there  exists  a  controversy 

10  concerning  the  distribution  of  royalty  fees  deposited  under  sub- 

11  clause  (A)  of  subsection  (b)  (1).  If  he  determines  that  no  such 

12  controversy  exists,  he  shall,  after  deducting  his  reasonable  ad- 

13  ministrative  costs  under  this  section,  distribute  such  fees  to  the 

14  copyright  owners  and  performers  entitled,  or  to  their  designated 

15  agents.  If  he  finds  that  such  a  controversy  exists,  he  shall  certify 

16  to  that  fact  and  proceed  to  constitute  a  panel  of  the  Copyright 

17  Royalty  Tribunal  in  accordance  with  section  803.  In  sucli  cases  the 

18  reasonable  administrative  costs  of  the  Register  under  this  section 

19  shall  be  deducted  prior  to  distribution  of  the  royalty  fee  by  the 

20  tribunal. 

21  (3)  The  fees  to  be  distributed  shall  be  divided  as  follows: 

22  (A)  To  every  copyright  owner  not  affiliated  with  a  jserform- 

23  ing  rights  society  the  pro  rata  share  of  the  fees  to  be  dis- 

24  tributed  to  which  such  copyright  owner  proves  liis  entitle- 

25  ment;  and 

26  (B)  To  the  performing  rights  societies  the  remainder  of 

27  the  fees  to  be  distributed  in  such  pro  rata  shares  as  they  shall 

28  by  agreement  stipulate  among  themselves,  or,  if  they  fail  to 

29  agree,  the  pro  rata  share  to  which  such  performing  rights 

30  societies  prove  their  entitlement. 

31  (C)   During  the  pendency  of  any  proceeding  under  this 

32  section,  tlie  Register  of  Copyrights  or  the  Copyright  Royalty 

33  Tribunal  shall  withhold  from  distribution  an  amount  suffi- 

34  cient  to  satisfy  all  claims  with  respect  to  which  a  controversy 

35  exists,  but  shall  have  discretion  to  proceed  to  distribute  any 

36  amounts  that  are  not  in  controversy. 

37  (4)   The  Register  of  Copyrights  sliall  promulgate  regulations 

38  under  which  persons  who  can  reasonably  be  expected  to  have 

39  claims  may,  during  the  year  in  which  performances  take  place, 

40  without  expense  to  or  harassment  of  operators  or  proprietors  of 


28 


26 

1  establishments  in  which  phonorecord  players  are  located,  have 

2  such  access  to  such  establishments  and  to  the  phonorecord  players 

3  located  therein  and  such  opportunity  to  obtain  information  with 

4  respect  thereto  as  may  be  reasonably  necessary  to  determine,  by 

5  sampling  procedures  or  otherwise,  the  proportion  of  contribution 

6  of  the  musical  works  of  each  such  person  to  the  earnings  of  the 

7  phonorecord  players  for  which  fees  shall  have  been  deposited. 

8  Any  person  who  alleges  that  he  has  been  denied  the  access  per- 

9  mitted  under  the  regulations  prescribed  by  the  Register  of  Copy- 

10  rights  may  bring  on  an  action  in  the  United  States  District  Court 

11  for  the  District  of  Columbia  for  the  cancellation  of  the  compul- 

12  sory  license  of  the  phonorecord  player  to  which  such  access  has 

13  been  denied,  and  the  court  shall  have  the  power  to  declare  the 

14  compulsory  license  thereof  invalid  from  the  date  of  issue  thereof. 

15  (d)   Criminal  Penalties. — Any  person  who  knowingly  makes  a 

16  false  representation  of  a  material  fact  in  an  application  filed  under 

17  clause  (1)  (A)  of  subsection  (b),  or  who  knowingly  alters  a  certificate 

18  issued  under  clause  (1)(B)  of  subsection  (b)  or  knowingly  affixes 

19  such  a  certificate  to  a  phonorecord  player  other  than  the  one  it  covers, 

20  shall  be  fined  not  more  than  $2,500. 

21  (e)  Definitions. — As  used  in  this  section,  the  following  tenns  and 

22  their  variant  forms  mean  the  following : 

23  (1)  A  "coin-operated  phonorecord  player"  is  a  machine  or 

24  device  that: 

25  (A)   is   employed   solely    for   the    performance   of    non- 
26  dramatic  musical  works  by  means  of  phonorecords  upon  being 

27  activated  by  insertion  of  a  coin ; 

28  (B)   is  located  in  an  establishment  making  no  dii-ect  or 

29  indirect  charge  for  admission ; 

30  (C)   is  accompanied  by  a  list  of  the  titles  of  all  the  musical 

31  works  available  for  performance  on  it,  which  list  is  affixed  to 

32  the  phonorecord  player  or  posted  in  the  establishment  in  a 

33  prominent  position  where  it  can  be  readily  examined  by  the 

34  public;  and 

35  (D)   affords  a  choice  of  works  available  for  performance 

36  and  permits  the  choice  to  be  made  by  the  patrons  of  the 

37  establishment  in  which  it  is  located. 

38  (2)   An  "operator"  is  any  person  who,  alone  or  jointly  with 

39  others : 

40  (A)  owns  a  coin-operated  phonorecord  player ;  or 


29 


27 

1  (B)  has  the  power  to  make  a  coin-operated  phonorecord 

2  player  available  for  placement  in  an  establishment  for  pur- 

3  poses  of  public  performance ;  or 

4  (C)  has  the  power  to  exercise  primary  control  over  the 

5  selection  of  the  musical  works  made  available  for  public 

6  performance  in  a  coin-operated  phonorecord  player. 

7  (3)  A  "performing  rights  society"  is  an  association  or  corpora- 

8  tion  that  licenses  the  public  performance  of  nondramatic  nmsical 

9  works  on  behalf  of  the  copyright  owners,  such  as  the  American 

10  Society  of  Composers,  Authors  and  Publishers,  Broadcast  Music, 

11  Inc.,  and  SESAC,  Inc. 

12  §117.  Scope  of  exclusive  rights:  Use  in  conjunction  with  com- 

13  puters  and  similar  information  systems 

14  Notwithstanding  the  provisions  of  sections  106  through  116,  this 

15  title  does  not  afford  to  the  owner  of  copyright  in  a  work  any  greater 

16  or  lesser  rights  with  respect  to  the  use  of  the  work  in  conjunction  with 

17  automatic  systems  capable  of  storing,  processing,  retrieving,  or  trans- 

18  ferring  information,  or  in  conjunction  with  any  similar  device,  ma- 

19  chine,  or  process,  than  those  afforded  to  works  under  the  law,  whether 

20  title  17  or  the  common  law  or  statutes  of  a  State,  in  effect  on  Decem- 

21  ber  31,  1976,  as  held  applicable  and  construed  by  a  court  in  an  action 

22  brought  under  this  title. 

23  Chapter  2.— COPYRIGHT  OWNERSHIP  AND  TRANSFER 

See. 

201.  Ownership  of  copyright. 

202.  Ownership  of  copyright  as  distinct  from  ownership  of  material  object. 

203.  Termination  of  transfers  and  licenses  granted  by  the  author. 

204.  Execution  of  transfers  of  copyright  ownership. 

205.  Recordation  of  transfers  and  other  documents. 

24  §  201.  Ownership  of  copyright 

25  (a)  Initial  Ownership. — Copyright  in  work  protected  under  this 

26  title  vests  initially  in  the  author  or  authors  of  the  work.  The  authors 

27  of  a  joint  work  are  co-ownei*s  of  copyright  in  the  work. 

28  (b)  Works  Made  for  HrRE. — In  tlie  case  of  a  work  made  for  hire, 

29  the  employer  or  other  persons  for  whom  the  work  was  prepared  is 

30  considered  the  author  for  purposes  of  this  title,  and,  unless  the  parties 

31  have  expressly  agreed  otherwise  in  a  written  instrument  signed  by 

32  them,  owns  all  of  the  rights  comprised  in  the  copyright. 

33  (c)   Contributions  TO  Collective  Works. — Copyright  in  each  sep- 

34  arate  contribution  to  a  collective  work  is  distinct  from  copyright  in 

35  the  collective  work  as  a  whole,  and  vests  initially  in  the  author  of  the 

36  contribution.  In  the  absence  of  an  express  transfer  of  the  copyright 


30 


28 

1  or  of  any  rights  under  it,  the  owner  of  copyright  in  the  collective 

2  work  is  presumed  to  have  acquired  only  the  privilege  of  reproducing 

3  and  distributing  the  contribution  as  part  of  that  particular  collective 

4  work,  any  revision  of  that  collective  work,  and  any  later  collective 

5  work  in  the  same  series. 

6  (d)  Transfer  OF  Ownership. — 

7  (1)  The  ownership  of  a  copyright  may  be  transferred  in  whole 

8  or  in  part  by  any  means  of  conveyance  or  by  operation  of  law,  and 

9  may  be  bequeathed  by  will  or  pass  as  personal  property  by  the 

10  applicable  laws  of  intestate  succession. 

11  (2)    Any  of  the  exclusive  rights  comprised  in  a  copyright, 

12  including  any  subdivision  of  any  of  the  rights  specified  by  section 

13  106,  may  be  transferred  as  provided  by  clause  ( 1 )  and  owned  sepa- 
ls rately.  The  owner  of  any  particular  exclusive  right  is  entitled,  to 

15  the  extent  of  that  right,  to  all  of  the  protection  and  remedies 

16  accorded  to  the  copyright  owner  by  this  title. 

17  §  202.  Ownership   of   copyright   as   distinct   from   ownership   of 

18  material  object 

19  Ownership  of  a  copyright,  or  of  any  of  the  exclusive  rights  under 

20  a  copyright,  is  distinct  from  ownership  of  any  material  object  in 

21  which  the  work  is  embodied.  Transfer  of  ownership  of  any  material 

22  object,  including  the  copy  or  phonorecord  in  which  the  work  is  first 

23  fixed,  does  not  of  itself  convey  any  rights  in  the  copyrighted  work 

24  embodied  in  the  object;  nor,  in  the  absence  of  an  agreement,  does 

25  transfer  of  ownership  of  a  copj^right  or  of  any  exclusive  rights  under 

26  a  copyright  convey  property  rights  in  any  material  object. 

27  §  203.  Termination  of  transfers  and  licenses  granted  by  the  author 

28  (a)  Conditions  for  Termination. — In  the  case  of  any  work  other 

29  than  a  work  made  for  hire,  the  exclusive  or  nonexclusive  grant  of  a 

30  transfer  or  license  of  copyright  or  of  any  right  under  a  copyright, 

31  executed  by  the  author  on  or  after  January  1,  1977,  otherwise  than 

32  by  will,  is  subject  to  termination  under  the  following  conditions : 

33  (1)  In  the  case  of  a  grant  executed  by  one  author,  termination 

34  of  the  grant  may  be  effected  by  that  author  or,  if  he  is  dead,  by 

35  the  person  or  persons  who,  under  clause  (2)  of  this  subsection, 

36  own  and  are  entitled  to  exercise  a  total  of  more  than  one  half  of 

37  that  author's  termination  interest.  In  the  case  of  a  grant  executed 

38  by  two  or  more  authors  of  a  joint  work,  termination  of  the  grant 

39  may  be  effected  by  a  majority  of  the  authors  who  executed  it; 

40  if  any  of  such  authors  is  dead,  his  termination  interest  may  be 


31 


29 

1  exercised  as  a  unit  by  the  person  or  persons  who,  under  clause  (2) 

2  of  this  subsection,  own  and  are  entitled  to  exercise  a  total  of  more 

3  than  one  half  of  his  interest. 

4  (2)  Where  an  author  is  dead,  his  or  her  termination  interest  is 

5  owned,  and  may  be  exercised,  by  his  widow  (or  her  widower)  and 

6  children  or  grandchildren  as  follows : 

7  (A)  The  widow  (or  widower)  owns  the  author's  entire  ter- 

8  mination  interest  unless  there  are  any  surviving  children  or 

9  grandchildren  of  the  author,  in  which  case  the  widow  (or 

10  widower)  owns  one  half  of  the  author's  interest; 

11  (B)   The  author's  surviving  children,  and  the  surviving 

12  children  of  any  dead  child  of  the  author,  own  the  author's 

13  entire  termination  interest  unless  there  is  a  widow  (or  wid- 

14  ower) ,  in  which  case  the  ownership  of  one  half  of  the  author's 

15  interest  is  divided  among  them ; 

16  (C)  The  rights  of  the  author's  children  and  grandchildren 

17  are  in  all  cases  divided  among  them  and  exercised  on  a  per 

18  stirpes  basis  according  to  the  number  of  his  children  repre- 

19  sented ;  the  share  of  the  children  of  a  dead  child  in  a  termina- 

20  tion  interest  can  be  exercised  only  by  the  action  of  a  majority 

21  of  them. 

22  ( 3 )  Termination  of  the  grant  may  be  effected  at  any  time  during 

23  a  period  of  five  years  beginning  at  the  end  of  thirty -five  years  from 

24  the  date  of  execution  of  the  grant ;  or,  if  the  grant  covers  the  right 

25  of  publication  of  the  work,  the  period  begins  at  the  end  of  thirty- 

26  five  years  from  the  date  of  publication  of  the  work  under  the  grant 

27  or  at  the  end  of  forty  years  from  the  date  of  execution  of  the 

28  grant,  whichever  term  ends  earlier. 

29  (4)  The  termination  shall  be  effected  by  serving  an  advance 

30  notice  in  writing,  signed  by  the  number  and  proportion  of  owners 

31  of  termination  interests  required  under  clauses  (1)  and  (2)  of  this 

32  subsection,  or  by  their  duly  authorized  agents,  upon  the  grantee 

33  or  his  successor  in  title. 

34  (A)  The  notice  shall  state  the  effective  date  of  the  t«rmina- 

35  tion,  which  shall  fall  within  the  five-year  period  specified  by 

36  clause  (3)  of  this  subsection,  and  the  notice  shall  be  served 

37  not  less  than  two  or  more  than  ten  years  before  that  date.  A 

38  copy  of  the  notice  shall  be  recorded  in  the  Copyright  Office 

39  before  the  effective  date  of  termination,  as  a  condition  to  its 

40  taking  effect. 


32 


30 


1  (B)  The  notice  shall  comply,  in  form,  content,  and  man- 

2  ner  of  service,  with  requirements  that  the  Register  of  Copy- 

3  rights  shall  prescribe  by  regulation. 

4  (5)  Termination  of  the  grant  may  be  effected  notwithstand- 

5  ing  any  agreement  to  the  contrary,  including  an  agreement  to 

6  make  a  will  or  to  make  any  future  grant. 

7  (b)  Effect  of  Termination. — Upon  the  effective  date  of  termina- 

8  tion,  all  rights  under  this  title  that  were  covered  by  the  terminated 

9  grant  revert  to  the  author,  authors,  and  other  persons  owning  termi- 

10  nation  interests  under  clauses  (1)  and  (2)  of  subsection  (a),  includ- 

11  ing  those  owners  who  did  not  join  in  signing  the  notice  of  termination 

12  under  clause  (4)  of  subsection  (a)  but,  with  the  following  limitations : 

13  (1)  -A-  derivative  work  prepared  under  authority  of  the  grant 

14  before  its  termination  may  continue  to  be  utilized  under  the  terms 

15  of  the  grant  after  its  termination,  but  this  privilege  does  not  ex- 

16  tend  to  the  preparation  after  the  termination  of  other  derivative 

17  works  based  upon  the  copyrighted  work  covered  by  the  terminated 

18  grant. 

19  (2)  The  future  rights  that  will  revert  upon  termination  of  the 

20  grant  become  vested  on  the  date  the  notice  of  termination  has 

21  been  served  as  provided  by  clause  (4)  of  subsection  (a).  The 

22  rights  vest  in  the  author,  authors,  and  other  persons  named  in, 

23  and  in  the  proportionate  shares  provided  by,  clauses  (1)  and  (2) 

24  of  subsection  (a). 

25  (3)  Subject  to  the  provisions  of  clause  (4)  of  this  subsection, 

26  a  further  grant,  or  agreement  to  make  a  further  grant,  of  any 

27  right  covered  by  a  terminated  grant  is  valid  only  if  it  is  signed 

28  by  the  same  number  and  proportion  of  the  owners,  in  whom  the 

29  right  has  vested  under  clause  (2)  of  this  subsection,  as  are  re- 

30  quired  to  terminate  the  grant  under  clauses  (1)  and  (2)  of  sub- 

31  section  (a).  Such  further  grant  or  agreement  is  effective  with 

32  respect  to  all  of  the  persons  in  whom  the  right  it  covers  has  vested 

33  under  clause  (2)  of  this  subsection,  including  those  who  did  not 
34:  join  in  signing  it.  If  any  person  dies  after  rights  under  a  ter- 

35  minated  grant  have  vested   in   him,   his  legal   representatives, 

36  legatees,  or  heirs  at  law  represent  him  for  purposes  of  this  clause. 

37  (4)  A  further  grant,  or  agreement  to  make  a  further  grant,  of 

38  any  right  covered  by  a  terminated  grant  is  valid  only  if  it  is  made 

39  after  the  effective  date  of  the  termination.  As  an  exception,  how- 

40  ever,  an  agreement  for  such  a  further  grant  may  be  made  between 


33 


31 

1  the  persons  provided  by  clause   (3)   of  this  subsection  and  the 

2  original  grantee  or  his  successor  in  title,  after  the  notice  of  termi- 

3  nation  has  been  served  as  provided  by  clause  (4)  of  subsection  (a) . 

4  (5)  Termination  of  a  grant  under  this  section  affects  only  those 

5  i-ights  covered  by  the  grant  tluit  arise  under  this  title,  and  in  no 

6  way  affects  rights  arising  under  any  other  Federal,  State,  or  for- 

7  eign  laws. 

8  (6)   Unless  and  until  termination  is  etl'ected  under  this  section, 

9  tlie  grant,  if  it  does  not  provide  otherwise,  contiiiues  in  effect  for 

10  the  term  of  copyright  provided  by  this  title. 

11  §204.  Execution  of  transfers  of  copyright  ownership 

12  (a)  A  transfer  of  copyright  ownership,  other  than  by  operation  of 

13  law,  is  not  valid  unless  an  instrument  of  conveyance,  or  a  note  or 

14  memorandum  of  the  transfer,  is  in  writing  and  signed  by  the  owner 

15  of  the  rights  conveyed  or  his  duly  authorized  agent. 

16  (b)  A  certificate  of  acknowledgement  is  not  required  for  the  valid- 

17  ity  of  a  transfer,  but  is  prima  facie  evidence  of  the  execution  of  the 

18  transfer  if: 

19  (1)  in  the  case  of  a  transfer  executed  in  the  United  States,  the 

20  certificate  is  issued  by  a  person  authorized  to  administer  oaths 

21  within  the  United  States ;  or 

22  (2)  in  the  case  of  a  transfer  executed  in  a  foreign  country,  the 

23  certificate  is  issued  by  a  diplomatic  or  consular  officer  of  the 

24  United  States,  or  by  a  person  authorized  to  administer  oaths 

25  whose  authority  is  proved  by  a  certificate  of  such  an  officer. 

26  §  205.  Recordation  of  transfers  and  other  documents 

27  (a)   CoxDiTioxs  for  Recordatiox. — Any  transfer  of  copyright  own- 

28  ership  or  otlier  document  pertaining  to  a  copyright  may  be  recorded 

29  in  the  Copyright  Office  if  the  document  filed  for  recordation  bears  the 

30  actual  signature  of  the  person  who  executed  it,  or  if  it  is  accompanied 

31  by  a  sworn  or  official  certification  that  it  is  a  true  copy  of  the  original. 

32  signed  document. 

33  (b)    Certificate  of  Eecordatiox. — The  Register  of   Copyrights 

34  shall,  upon  receipt  of  a  document  as  provided  by  subsection  (a)  and 

35  of  the  fee  provided  by  section  708,  record  the  document  and  return  it 

36  with  a  certificate  of  recordation. 

37  (c)  Recordatiox  as  Cox'structive  Notice. — Recordation  of  a  docu- 

38  ment  in  the  Copyright  Office  gives  all  persons  constructive  notice  of  the 

39  facts  stated  in  the  recorded  document,  but  only  if : 


34 


32 

1  (1)  the  document,  or  material  attached  to  it,  specifically  identi- 

2  fies  the  work  to  which  it  pertains  so  that,  after  the  document  is 

3  indexed  by  the  Register  of  Copyrights,  it  would  be  revealed  by  a 

4  reasonable  search  under  the  title  or  registration  number  of  the 

5  work ;  and 

6  (2)  registration  has  been  made  for  the  work. 

'  (d)  Recordation  as  Prerequisite  to  Infringement  Suit. — No  per- 

°  son  claiming  by  virtue  of  a  transfer  to  the  owner  of  copyright  or  of 

^  any  exclusive  right  under  a  copyright  is  entitled  to  institute  an  in- 

^^  fringement  action  under  this  title  until  the  instrument  of  transfer 

^^  under  which  he  claims  has  been  recorded  in  the  Copyright  Office,  but 

•'■^  suit  may  be  instituted  after  such  recordation  on  a  cause  of  action  that 

^^  arose  before  recordation. 

(e)  Priority  Between  Conflicting  Transfers. — As  between  two 
^^  conflicting  transfers,  the  one  executed  first  prevails  if  it  is  recorded,  in 

the  manner  required  to  give  constructive  notice  under  subsection  (c) 
within  one  month  after  its  execution  in  the  United  States  or  within  two 

1  Q 

months  after  its  execution  abroad,  or  at  any  time  before  recordation  in 
such  manner  of  the  later  transfer.  Otherwise  the  later  transfer  prevails 
if  recorded  first  in  such  manner,  and  if  taken  in  good  faith,  for  valu- 
able consideration  or  on  the  basis  of  a  binding  promise  to  pay  royal- 
ties, and  without  notice  of  the  earlier  transfer. 

(f)  Priority  Between  Conflicting  Transfer  of  Ownership  and 
^        Nonexclusive  License. — A  nonexclusive  license,  whether  recorded  or 

not,  prevails  over  a  conflicting  transfer  of  copyright  ownership  if  the 

26        •  •        • 

license  is  evidenced  by  a  written  instrument  signed  by  the  owner  of  the 

rights  licensed  or  his  duly  authorized  agent,  and  if : 

(1)  the  license  was  taken  before  execution  of  the  transfer;  or 

(2)  the  license  was  taken  in  good  faith  before  recordation  of 
the  transfer  and  without  notice  of  it. 

Chapter  3.— DURATION  OF  COPYRIGHT 

Sec.  • 

301.  Pre-emption  with  respect  to  other  laws. 

302.  Duration  of  oopyright :  Works  created  on  or  after  January  1,  1977. 

30.3.  Duration  of  copyright :   Works  created  but  not  published  or  copyrighted 
before  .January  1,  1077. 

304.  Duration  of  copyright :  Subsisting  copyrights. 

305.  Duration  of  copyright :  Terminal  date. 

32  §  301.  Pre-emption  with  respect  to  other  laws 

33  (a)  On  and  after  Januat y  1.  107.7.  all  riirhts  in  the  nature  of  cnpy- 

34  right  in  works  that  como  within  tlie  subject  matter  of  copyright  as 

35  specified  by  sections  102  and  103,  whether  created  before  or  after  that 


16 

17 


20 
21 
22 
23 


27 
28 
29 
30 
31 


35 


33 


1  date  and  whether  published  or  unpublished,  are  governed  exclusively 

2  by  this  title.  Thereafter,  no  person  is  entitled  to  copyright,  literary 

3  property  rights,  or  any  equivalent  legal  or  equitable  right  in  any  such 

4  work  under  the  common  law  or  statutes  of  any  State. 

5  -     (b)   Nothing  in  this  title  annuls  or  limits  any  rights  or  remedies 

6  under  the  common  law  or  statutes  of  any  State  with  respect  to  : 

T  ( 1 )   unpublished  matei-ial  that  does  not  come  within  the  subject 

8  matter  of  copyright  as  specified  by  sections  102  and  103,  including 

9  works  of  authorship  not  fixed  in  any  tangible  medium  of  ex- 

10  pression ; 

11  (2)   any  cause  of  action  arising  from  undertakings  commenced 

12  before  January  1,  1977; 

13  (3)   activities  violating  rights  that  are  not  equivalent  to  any  of 

14  the  exclusive  rights  within  the  general  scope  of  copyright  as  speci- 

15  fied  by  section  106,  including  breaches  of  contract,  breaches  of 

16  trust,  invasion  of  privacy,  defamation,  and  deceptive  trade  prac- 
1*^  tioes  such  as  passing  off  and  false  representation. 

18  §302.  Duration  of  copyright:  Works  created  on  or  after  Janu- 

19  ary  1,  1977 

20  (a)  In  General. — Copyright  in  a  woi'k  created  on  or  after  January 

21  1,  1977,  subsists  from  its  creation  and.  except  as  provided  by  the 

22  following  subsections,  endures  for  a  term  consisting  of  the  life  of  the 

23  author  and  fifty  years  after  his  death. 

24  (b)  Joint  Works. — In  the  case  of  a  joint  work  prepared  by  two 

25  or  more  authors  who  did  not  work  for  hire,  the  copyright  endures  for 

26  a  term  consisting  of  the  life  of  the  last  surviving  author  and  fifty 

27  years  after  his  death. 

28  (c)  Anonymous  Works,  Pseudonymous  Works,  and  Works  Made 

29  for  Hire. — In  the  case  of  an  anonymous  work,  a  pseudonymous  work 

30  or  a  work  made  for  hire,  the  copyright  endures  for  a  term  of  seventy- 

31  five  years  from  the  year  of  its  first  publication,  or  a  term  of  one 

32  himdred  years  from  the  year  of  its  creation,  whichever  expires  first. 

33  If,  before  the  end  of  such  term,  the  identity  of  one  or  more  of  the 

34  authors  of  an  anonymous  or  pseudonymous  work  is  revealed  in  the 

35  records  of  a  registration  made  for  that  work  under  subsection  (a) 

36  or  (d)  of  section  407,  or  in  the  records  prov-ided  by  this  subsection, 

37  the  copyright  in  the  work  endures  for  the  term  specified  by  subsections 

38  (a)  or  (b),  based  on  tlie  life  of  the  author  or  authors  whose  identity 

39  has  been  i-evealed.  Any  person  having  an  intei"est  in  the  copyright  in 

40  an  anonymous  or  pseudonymous  work  may  at  any  time  record,  in 


36 


34 

1  records  to  be  maintained  by  the  Copyright  Office  for  that  purpose,  a 

2  statement  identifying  one  or  more  authors  of  the  work ;  the  statement 

3  shall  also  identify  the  person  filing  it,  the  nature  of  his  interest,  the 

4  source  of  his  information,  and  the  particular  work  affected,  and  shall 

5  comply  in  form  and  content  witli  requirements  that  the  Register  of 

6  Copyrights  shall  prescribe  by  regulation. 

7  (d)  Records  Relating  to  Death  of  Authobs. — Any  person  having 

8  an  interest  in  a  copyright  may  at  any  time  record  in  the  Copyright 

9  Office  a  statement  of  the  date  of  death  of  the  author  of  the  copy- 

10  righted  work,  or  a  statement  that  the  author  is  still  living  on  a  par- 

11  ticular  date.  The  statement  shall  identify  the  pereon  filing  it,  the 

12  nature  of  his  interest,  and  the  source  of  his  information,  and  shall 

13  comply  in  form  and  content  with   requirements  that  the  Register 

14  of  Copyrights  shall  prescribe  by  regulation.  The  Register  shall  main- 

15  tain  current  records  of  information  relating  to  the  death  of  authors 

16  of  copyrighted  works,  based  on  such  recorded  statements  and,  to  the 

17  extent  he  considers  practicable,  on  data  contained  in  any  of  the  records 

18  of  the  Copyright  Office  or  in  other  reference  sources. 

19  (e)  Presumption  as  to  Author's  Death. — After  a  period  of  seventy- 

20  five  years  from  the  year  of  first  publication  of  a  work,  or  a  period 

21  of  one  hundred  years  from  the  year  of  its  creation,  whichever  expires 

22  first,  any  person  who  obtains  from  the  Copyright  Office  a  certified  re- 

23  port  that  the  records  provided  by  subsection  (d)  disclose  nothing  to 

24  indicate  that  the  author  of  the  work  is  living,  or  died  less  than  fifty 

25  years  before,  is  entitled  to  the  benefit  of  a  presumption  that  the  author 

26  has  been  dead  for  at  least  fifty  years.  Reliance  in  good  faith  upon  this 

27  presumption  shall  be  a  complete  defense  to  any  action  for  infringe- 

28  ment  under  this  title. 

29  §  303.  Duration  of  copyright .  Works  created  but  not  published 

30  or  copyrighted  before  January  1,  1977 

31  Copyright  in  a  work  created  before  January  1, 1977,  but  not  thereto- 

32  fore  in  the  public  domain  or  copyrighted,  subsists  from  January  1, 

33  1977,  and  endures  for  the  term  provided  by  section  302.  In  no  case, 

34  however,  shall  the  term  of  copyright  in  such  a  work  expire  before 
December  31,  2001 ;  and,  if  the  work  is  published  on  or  before  December 
31,  2001,  the  term  of  copyright  shall  not  expire  before  December  31, 


35 
36 


37  2026. 

38  § 304.  Duration  of  copyright:  Subsisting  copyrights 

39  (a)  Copyrights  in  Their  First  Term  on  January  1,  1977. — Any 

40  copyright,  the  first  term  of  which  is  subsisting  on  January  1,  1977, 


37 


35 


1  shall  endure  for  twenty-eight  years  from  the  date  it  was  originally 

2  secured :  Provided.  That  in  the  case  of  any  posthumous  work  or  of  any 

3  periodical,  cyclopedic,  or  other  composite  work  upon  wliich  the  copy- 

4  right  was  originally  secured  by  the  proprietor  thereof,  or  of  any  work 

5  copyrighted  by  a  corporate  body  (otherwise  than  as  assignee  or  li- 

6  c*nsee  of  the  individual  author)  or  by  an  employer  for  whom  such 

7  work  is  made  for  hire,  the  proprietor  of  such  copyright  shall  be  en- 

8  titled  to  a  renewal  and  extension  of  the  copyright  in  such  work  for  the 

9  further  term  of  forty-seven  years  when  application  for  such  renewal 

10  and  extension  shall  have  been  made  to  the  Copyriglit  Office  and  duly 

11  registered  therein  within  one  year  prior  to  the  expiration  of  the  origi- 

12  ual  term  of  copyriglit :  And  pi'ovided  further.  That  in  the  case  of  any 

13  other  copyrighted  work,  including  a  contribution  by  an  individual 
14:  author  to  a  periodical  or  to  a  cyclopedic  or  other  composite  work,  the 

15  author  of  such  work,  if  still  living,  or  the  widow,  widower,  or  children 

16  of  the  author,  if  the  author  be  not  living,  or  if  such  author,  widow, 
1'  widower,  or  children  be  not  living,  then  the  author's  executore,  or  in 

18  the  absence  of  a  will,  his  next  of  kin  shall  be  entitled  to  a  renewal  and 

19  extension  of  the  copyright  in  such  work  for  a  further  term  of  forty- 

20  seven  years  when  application  for  such  renewal  and  extension  shall 

21  have  been  made  to  the  Copyright  Office  and  duly  registered  therein 

22  within  one  year  prior  to  the  expiration  of  the  original  term  of  copy- 

23  right :  Aiul  provided  further.  That  in  default  of  tlie  registration  of 

24  such  application  for  renewal  and  extension,  the  copyright  in  any  work 

25  shall  terminate  at  the  expiration  of  twenty-eight  years  from  the  date 

26  copyright  was  originally  secured. 

27  (b)  Copyrights  in  Their  Renewal.  Term  or  Registered  for  Re- 

28  newal  Before  January  1,  1977. — The  duration  of  any  copyright,  the 

29  renewal  term  of  whicli  is  subsisting  at  any  time  between  December  31, 

30  1975,  and  December  31,  197G.  inclusive,  or  for  which  renewal  registra- 

31  tion  is  made  between  December  31,  1975,  and  December  31.  1976, 

32  inclusive,  is  extended  to  endure  for  a  term  of  75  years  from  the  date 

33  copyright  was  originally  secured. 

34  (c)  Termination  of  Transfers  and  Licenses  Covering  Extended 

35  Renewal  Term. — In  the  case  of  any  copyright  subsisting  in  either 

36  its  first  or  renewal  term  on  January  1.  1977.  other  than  a  copyright 

37  in  a  work  made  for  liire,  the  exclusive  or  nonexclusive  grant  of  a  trans- 

38  fer  or  license  of  the  renewal  copyright  or  of  any  right  under  it, 

39  executed  before  January  1,  1977,  by  any  of  the  persons  designated  by 


38 


36 


1  the  second  proviso  of  subsection  (a)  of  this  section,  otherwise  than  by 

2  will,  is  subject  to  termination  under  the  following  condition : 

3  ( 1 )  In  the  case  of  a  grant  executed  by  a  person  or  persons  other 

4  than  the  author,  termination  of  the  grant  may  be  effected  by  the 

5  surviving  person  or  persons  who  executed  it.  In  the  case  of  a 

6  grant  executed  by  one  or  more  of  the  authors  of  the  work,  termina- 

7  tion  of  the  grant  may  be  effected,  to  the  extent  of  a  particular 

8  author's  share  in  the  ownership  of  the  renewal  copyright,  by  the 

9  author  who  executed  it  or,  if  such  author  is  dead,  by  the  person  or 

10  persons  who,  under  clause  (2)  of  this  subsection,  own  and  are 

11  entitled  to  exercise  a  total  of  more  than  one  half  of  that  author's 

12  termination  interest. 

13  (2)  Where  an  author  is  dead,  his  or  her  termination  interest  is 

14  owned,  and  may  be  exercised,  by  his  widow  (or  her  widower)  and 

15  children  or  grandchildren  as  follows : 

1"  (A)  The  widow  (or  widower)  owns  the  author's  entire 

1'  termination  interest  unless  there  are  any  surviving  children 

1°  or  grandchildren  of  the  author,  in  which  case  the  widow  (or 

19  widower)  owns  one  half  of  the  author's  interest; 

^  (B)   The  author's  surviving  children,  and  the  surviving 

21  children  of  any  dead  child  of  the  author,  own  the  author's 

22  entire  termination  interest  unless  there  is  a  widow  (or  wid- 

23  ower) ,  in  which  case  the  ownership  of  one  half  of  the  author's 

24  interest  is  divided  among  them ; 

25  (C)  The  rights  of  the  author's  children  and  grandchildren 

26  are  in  all  cases  divided  among  them  and  exercised  on  a  per 

27  stirpes  basis  according  to  tlie  number  of  his  children  repre- 

28  sented ;  the  share  of  the  children  of  a  dead  child  in  a  termina- 
ls tion  interest  can  be  exercised  only  by  the  action  of  a  major- 
30                     ity  of  them. 

"1  (3)  Termination  of  the  grant  may  be  effected  at  any  time  dur- 

ing a  period  of  five  years  beginning  at  the  end  of  fifty-six  years 
form  the  date  copyright  was  originally  secured,  or  beginning  on 
January  1,  1977,  whichever  is  later. 

(4)  The  termination  shall  be  effected  by  serving  an  advance 
notice  in  writing  upon  the  grantee  or  his  successor  in  title.  In  the 
case  of  a  gi-ant  executed  by  a  person  or  persons  other  than  the 
author,  the  notice  shall  be  signed  by  all  of  those  entitled  to  termi- 
nate the  grant  under  clause  (1)  of  this  subsection,  or  by  their  duly 
authorized  agents.  In  the  case  of  a  grant  executed  by  one  or  more 


32 
33 
34 
35 
36 
37 
38 
39 
40 


39 


37 

1  of  the  authors  of  the  work,  the  notice  as  to  any  one  author's  share 

2  shall  be  signed  by  him  or  his  duly  authorized  agent  or,  if  he  is 

3  dead,  by  the  number  and  proportion  of  the  owners  of  his  termina- 

4  tion  interest  required  under  clauses  (1)  and  (2)  of  this  subsection, 

5  or  by  their  duly  authorized  agents. 

6  (A)  The  notice  shall  state  the  eflfective  date  of  the  termi- 

7  nation,  which  shall  fall  within  the  five-year  period  specified 

8  by  clause  (3)  of  this  subsection,  and  the  notice  shall  be  served 

9  not  less  than  two  or  more  than  ten  years  before  that  date.  A 

10  copy  of  the  notice  shall  be  recorded  in  the  Copyright  Office 

11  before  the  effective  date  of  termination,  as  a  condition  to  its 

12  taking  effect. 

13  (B)  The  notice  shall  comply,  in  foi-m,  content,  and  manner 

14  of  service,  with  requirements  that  the  Register  of  Copyrights 

15  shall  prescribe  by  regulation. 

16  (5)  Termination  of  the  grant  may  be  effected  notwithstanding 

17  any  agreement  to  the  contrary,  including  an  agreement  to  make 

18  a  will  or  to  make  any  future  grant. 

19  (6)  In  the  case  of  a  grant  executed  by  a  person  or  persons  other 

20  than  the  author,  all  rights  under  this  title  that  were  covered  by 

21  the  terminated  grant  revert,  upon  the  effective  date  of  termination, 

22  to  all  of  those  entitled  to  terminate  the  grant  under  clause  (1)  of 

23  this  subsection.  In  the  case  of  a  grant  executed  by  one  or  more 

24  of  the  authors  of  the  work,  all  of  a  particular  author's  rights 

25  under  this  title  that  were  covered  by  the  terminated  grant  revert, 

26  upon  the  effective  date  of  termination,  to  that  author  or,  if  he  is 

27  dead,  to  the  persons  owning  his  termination  interest  under  clause 

28  (2)  of  this  subsection,  including  those  owners  who  did  not  join 

29  in  signing  the  notice  of  termination  under  clause  (4)  of  this  sub- 

30  section.  In  all  cases  the  reversion  of  rights  is  subject  to  the  follow- 

31  ing  limitations : 

32  (A)  A  derivative  work  prepared  under  authority  of  the 

33  grant  before  its  termination  may  continue  to  be  utilized  under 

34  the  terms  of  the  grant  after  its  termination,  but  this  privilege 

35  does  not  extend  to  the  preparation  after  the  t-ermination  of 

36  other  derivative  works  based  upon  the  copyrighted  work  cov- 

37  ered  by  the  terminated  grant. 

38  (B)  The  future  rights  that  will  revert  upon  termination 

39  of  the  trrant  become  vested  on  the  date  the  notice  of  termi- 


40 


38 


10 


^  nation  has  been  served  as  provided  by  clause  (4)   of  this 

^  subsection. 

^  (C)   Where  an  author's  rights  revert  to  two  or  more  per- 

*  sons  under  clause  (2)  of.  this  subsection,  they  shall  vest  in 
^  those  persons  in  the  proportionate  shares  provided  by  that 
^  clause.  In  such  a  case,  and  subject  to  the  provisions  of  sub- 

•  clause  (D)  of  this  clause,  a  further  grant,  or  agreement  to 
°  make  a  further  grant,  of  a  particular  author's  share  with 
^  respect  to  any  right  covered  by  a  terminated  grant  is  valid 

only  if  it  is  signed  by  the  same  number  and  proportion  of 

11  the  owners,  in  whom  the  right  has  vested  under  this  clause, 

12  as  are  required  to  terminate  the  grant  under  clause  (2)  of 

13  this  subsection.  Such  further  grant  or  agreement  is  effective 

14  with  respect  to  all  of  the  persons  in   whom  the  right  it 

15  covers  has  vested  under  this  subclause,  including  those  who 

16  did  not  join  in  signing  it.  If  any  person  dies  after  rights 

17  under  a  terminated  grant  have  vested  in  him,  his  legal  repre- 

18  sentatives,  legatees,  or  heirs  at  law  represent  him  for  purposes 

19  of  this  subclass. 

20  (D)   A  further  grant,  or  agreement  to  make  a  further 

21  grant,  of  any  right  covered  by  a  terminated  grant  is  valid 

22  only  if  it  is  made  after  the  effective  date  of  the  termination. 

23  As  an  exception,  however,  an  agreement  for  such  a  further 

24  grant  may  be  made  between  the  author  or  any  of  the  per- 

25  sons  provided  by  the  first  sentence  of  clause   (6)    of  this 

26  subsection,  or  between  the  persons  provided  by  subclause 

27  (C)  of  this  clause,  and  the  original  grantee  or  his  successor 

28  in  title,  after  the  notice  of  termination  has  been  served  as 

29  provided  by  clause  (4)  of  this  subsection. 

30  (E)  Termination  of  a  grant  under  this  subsection  affects 

31  only  those  rights  covered  by  the  grant  that  arise  under  this 

32  title,  and  in  no  way  affects  rights  arising  under  any  other 

33  Federal,State,  or  foreign  laws. 

34  (F)  Unless  and  until  termination  is  effected  under  this 

35  section,  the  grant,  if  it  does  not  provide  otherwise,  continues 

36  in  effect  for  the  remainder  of  the  extended  renewal  term. 

37  §  305.  Duration  of  copyright :  Terminal  date 

38  All  terms  of  copyright  provided  by  sections  302  through  304  run  to 

39  the  end  of  the  calendar  year  in  which  they  would  otherwise  expire. 


41 


39 

1  Chapter  4.— COPYRIGHT  NOTICE,  DEPOSIT,  AND 

2  REGISTRATION 

Sec. 

401.  Notice  of  copyright :  Visually  perceptible  copies. 

402.  Notice  of  copyright :  Phonorecords  of  sound  recordings. 

403.  Notice  of  copyright :  Publications  incorporating  United  States  Government 

works. 

404.  Notice  of  copyright :  Contributions  to  collective  works. 

405.  Notice  of  copyright :  Omission  of  notice. 

406.  Notice  of  copyright :  Error  in  name  or  date. 

407.  Deposit  of  copies  or  phonorecords  for  Library  of  Congress. 

408.  Copyright  registration  in  general. 

409.  Application  for  registration. 

410.  Registration  of  claim  and  Issuance  of  certificate. 

411.  Registration  as  prerequisite  to  infringement  suit. 

412.  Registratiou  as  prerequisite  to  certain  remedies  for  infringement. 

3  §  401.  Notice  of  copyright :  Visually  perceptible  copies 

4  (a)   General  Requirement. — ^Whenever  a  -work  protected  under 

5  this  title  is  published  in  the  United  States  or  elsewhere  by  authority 

6  of  the  copyright  owner,  a  notice  of  copyright  as  provided  by  this  sec- 

7  tion  shall  be  placed  on  all  publicly  distributed  copies  from  which  the 

8  work  can  be  visually  perceived,  either  directly  or  with  the  aid  of  a 

9  machine  or  device. 

10  (b)  Form  of  Notice. — The  notice  appearing  on  the  copies  shall  con- 

11  sist  of  the  following  three  elements : 

12  (1)  the  symbol  ©  (the  letter  C  in  a  circle),  the  word  "Copy- 

13  right,"  or  the  abbreviation  "Copr.'' ; 

14  (2)  the  year  of  first  publication  of  the  work:  in  the  case  of 

15  compilations  or  derivative  works  incorporating  previously  pub- 

16  lished  material,  the  year  date  of  first  publication  of  the  compila- 

17  tion  or  derivative  work  is  sufficient.  The  year  date  may  be  omitted 

18  where  a  j^ictorial,  graphic,  or  sculptural  work,  with  accompanying 

19  text  matter,  if  any.  is  reproduced  in  or  on  greeting  cards,  post- 
20  cards,  stationery,  jewelry,  dolls,  toys,  or  any  useful  articles ; 

21  (3)  the  name  of  the  owner  of  copyright  in  the  work,  or  an  ab- 

22  breviation  by  which  the  name  can  be  recognized,  or  a  generally 

23  known  alternative  designation  of  the  owner. 

24  (c)  Position  of  Notice. — The  notice  shall  be  affixed  to  the  copies  in 

25  such  manner  and  location  as  to  give  reasonable  notice  of  the  claim 

26  of  copyright.  The  Register  of  Copyrights  shall  prescribe  by  regula- 

27  tion,  as  examples,  specific  methods  of  affixation  and  positions  of  the 

28  notice  on  various  types  of  woi-ks  that  will  satisfy  this  requirement,  but 

29  these  specifications  shall  not  be  considered  exhaustive. 

30  §402.  Notice  of  copyright :  Phonorecords  of  sound  recordings 

31  (a)   General  Requirejlext. — Whenever  a  sound  recording  pro- 


c;7_'7QC    r^ 


42 


40 

1  tected  under  this  title  is  published  in  the  United  States  or  elsewhere  by 

2  authority  of  the  copyright  owner,  a  notice  of  copyright  as  provided 

3  by  this  section  shall  be  placed  on  all  publicly  distributed  phonorecords 

4  of  the  sound  recording. 

5  (b)  Form  of  Notice. — The  notice  appearing  on  tlie  phonorecords 

6  shall  consist  of  the  following  three  elements : 

7  (1)  the  symbol  ®  (the  letter  P  in  a  circle)  ; 

8  (2)  the  year  of  first  publication  of  the  sound  recording ; 

9  (3)  the  name  of  the  owner  of  copyrights  in  the  sound  record- 

10  ing,  or  an  abbreviation  by  which  the  name  can  be  recognized,  or  a 

11  generally  known  alternative  designation  of  the  owner;   if  the 

12  producer  of  the  sound  recording  is  named  on  the  phonorecord 

13  labels  or  containers,  and  if  no  other  name  appears  in  conjunction 

14  with  the  notice,  his  name  shall  be  considered  a  part  of  the  notice. 

15  (c)  Position  of  Notice. — The  notice  shall  be  placed  on  the  surface 

16  of  the  phonorecord,  or  on  the  phonorecord  label  or  container.-  in  such 

17  manner  and  location  as  to  give  reasonable  notice  of  the  claim  of  copy- 

18  right. 

19  §403.  Notice  of   copyright:    Publications  incorporating   United 

20  State  Government  works 

21  Whenever  a  work  is  published  in  copies  or  phonorecords  consisting 

22  preponderantly  of  one  or  more  works  of  the  United  States  Govern- 

23  ment,  the  notice  of  copyright  provided  by  section  401  or  402  shall 

24  also  include  a  statement  identifying,  either  affirmatively  or  negatively, 

25  those  portions  of  the  copies  or  phonorecords  embodying  any  work  or 

26  works  protected  under  this  title. 

27  §404.  Notice  of  copyright:  Contributions  to  collective  works 

28  (a)  A  separate  contribution  to  a  collective  work  may  bear  its  own 

29  notice  of  copyright,  as  provided  by  section  401  througli  403.  How- 

30  ever,  a  single  notice  applicable  to  the  collective  work  as  a  whole  is 

31  sufficient  to  satisfy  the  requirements  of  sections  401  through  403  with 

32  respect  to  the  separate  contributions  it  contains  (not  including  adver- 

33  tisements  inserted  on  behalf  of  persons  other  than  the  owner  of  copy- 

34  right  in  the  collective  work) ,  regardless  of  the  ownership  of  copyright 

35  in  the  contributions  and  whether  or  not  they  have  been  previously 

36  published. 

37  (b)   Where  the  person  named  in  a  single  notice  applicable  to  a 

38  collective  work  as  a  whole  is  not  the  owner  of  copyright  in  a  separate 

39  contribution  that  does  not  bear  its  own  notice,  the  case  is  governed 

40  by  the  provisions  of  section  406(a). 


43 


41 

1  §  405.  Notice  of  copyright :  Omission  of  notice 

2  (a)  Effectt  of  Omission  on  Copyright. — The  omission  of  the  copy- 

3  right  notice  described  by  sections  401  through  408  from  copies  or 

4  phonorecords   publicly   distributed   by   authority   of   the   copyright 

5  owner  does  not  invalidate  the  copyright  in  a  work  if : 

6  (1)  the  notice  has  been  omitted  from  no  more  than  a  relatively 

7  small  number  of  copies  or  phonorecords  distributed  to  the  public ; 

8  or 

9  (2)  registration  for  the  work  has  been  made  before  or  is  made 

10  within   five  years  after  the  publication  without  notice,  and   a 

11  reasonable  effort  is  made  to  add  notice  to  all  copies  or  phono- 

12  records  that  are  distributed  to  the  public  in  the  United  States 

13  after  the  omission  has  been  discovered;  or 

14  (3)  the  notice  has  been  omitted  in  violation  of  an  express  re- 

15  quirement  in  writing  that,  as  a  condition  of  the  copyright  owner's 

16  authorization  of  the  public  distribution  of  copies  or  phonorecords, 

17  they  bear  the  prescribed  notice. 

18  (b)  Effect  of  Omission  on  Innocent  Infringers. — Any  person 

19  who  innocently  infringes  a  copyright,  in  reliance  upon  an  authorized 

20  copy   or   phonorecord   from   which   the   copyright   notice   has   been 

21  omitted,  incurs  no  liability  for  actual  or  statutory  damages  under  sec- 

22  tion  504  for  any  infringing  acts  committed  before  receiving  actual 

23  notice  that  registration  for  the  work  has  been  made  under  section  408, 
^  if  he  proves  that  he  was  misled  by  the  omission  of  notice.  In  a  suit 

25  for  infringement  in  such  a  case  the  court  may  allow  or  disallow  re- 

26  covery  of  any  of  the  infringer's  profits  attributable  to  the  infringe- 

27  ment,  and  may  enjoin  the  continuation  of  the  infringing  undertaking 

28  or  may  require,  as  a  condition  for  permitting  the  infringer  to  con- 

29  tinue  his  undertaking,  that  he  pay  the  copyright  owner  a  reason- 

30  able  license  fee  in  an  amount  and  on  terms  fixed  by  the  court. 

31  (c)  Removal  of  Notice. — Protection  under  this  title  is  not  affected 

32  by  the  removal,  destruction,  or  obliteration  of  the  notice,  without 

33  the  authorization  of  the  copyright  owner,  from  any  publicly  distrib- 

34  uted  copies  or  phonorecords. 

35  §406.  Notice  of  copyright:  Error  in  name  or  date 

36  (a)  Error  in  Name. — Where  the  person  named  in  the  copyright 

37  notice  on  copies  or  phonorecords  publicly  distributed  by  authority  of 

38  the  copyright  owner  is  not  the  owner  of  copyright,  the  validity  and 

39  ownership  of  the  copyright  are  not  affected.  In  such  a  case,  however. 

40  any  person  who  innocently  begins  an  undertaking  that  infringes  the 


44 


42 


1  copyright  has  a  complete  defense  to  any  action  for  such  infringement 

2  if  he  proves  that  he  was  misled  by  the  notice  and  began  the  undertak- 

3  ing  in  good  faith  under  a  purported  transfer  or  license  from  the  person 

4  named  therein,  unless  before  the  undertaking  was  begun : 

5  (1)  registration  for  the  work  had  been  made  in  the  name  of 

6  the  owner  of  copyright ;  or 

7  (2)   a  document  executed  by  the  person  named  in  the  notice 

8  and  showing  the  ownership  of  the  copyright  had  been  recorded. 
&  The  person  named  in  the  notice  is  liable  to  account  to  the  copyright 

10  owner  for  all  receipts  from  purported  transfei'S  or  licenses  made  by 

11  him  under  the  copyright. 

12  (b)  Error  in  Date. — When  the  year  date  in  the  notice  on  copies  or 

13  phonorecords  distributed  by   authority   of  the  copyright  owner  is 

14  earlier  than  the  year  in  which  publication  first  occurred,  any  period 

15  computed  from  the  year  of  first  publication  under  section  302  is  to  be 

16  computed  from  the  year  in  the  notice.  Where  the  year  date  is  more 

17  than  one  year  later  than  the  year  in  which  publication  first  occurred, 

18  the  work  is  considered  to  have  been  published  without  any  notice  and 

19  is  governed  by  the  provisions  of  section  405. 

20  (c)  Omission  of    Name  or  Date. — Where  copies  or  phonorecords 

21  publicly  distributed  by  authority  of  tlie  copyright  owner  contain  no 

22  name  or  no  date  that  could  reasonably  be  considered  a  part  of  the 

23  notice,  the  work  is  considered  to  have  been  published  witliout  any 

24  notice  and  is  governed  by  the  provisions  of  section  405. 

25  §  407.  Deposit  of  copies  or  phonorecords  for  Library  of  Congress 

26  (a)  Except  as  provided  by  subsection  (c),  the  owner  of  copyright 

27  or  of  the  exclusive  right  of  publication  in  a  work  published  with  no- 

28  tice  of  copyright  in  the  United  States  shall  deposit,  within  three 

29  months  after  the  date  of  such  publication : 

30  ( 1 )  two  complete  copies  of  the  best  edition ;  or 

31  (2)   if  the  work  is  a  sound  recording,  two  complete  phono- 

32  i-ecords  of  the  best  edition,  together  with  any  printed  or  other 

33  visually  perceptible  material  published  with  such  phonorecords. 

34  This  deposit  is  not  a  condition  of  copyright  protection. 

35  (b)  The  required  copies  or  phonorecords  shall  be  deposited  in  tlie 

36  Copyright  Office  for  the  use  or  disposition  of  the  Library  of  Congress. 

37  Tlie  Register  of  Copyrights  shall,  when  requested  by  the  depositor 

38  and  upon  payment  of  the  fee  prescribed  by  section  708,  issue  a  receipt 

39  for  the  deposit. 

40  (c)  The  Eegister  of  Copyrights  may  by  regulation  exempt  any 


45 


43 

1  categories  of  material  from  the  deposit  requirements  of  this  section, 

2  or  require  deposit  of  only  one  copy  or  phonorecord  with  respect  to 

3  any  categories. 

4  (d)  At  any  time  after  publication  of  a  work  as  provided  by  sub- 

5  section  (a),  the  Register  of  Copyrights  may  make  written  demand 

6  for  the  required  deposit  on  any  of  the  persons  obligated  to  make  the 

7  deposit  under  subsection  (a).  Unless  deposit  is  made  within  three 

8  months  after  the  demand  is  received,  the  person  or  persons  on  whom 

9  the  demand  was  made  are  liable : 

10  (1)  toafineof  not  more  than  $250  for  each  work;  and 

11  (2)  to  pay  to  the  Library  of  Congress  the  total  retail  price  of 

12  the  copies  or  phonorecords  demanded,  or,  if  no  retail  price  has 

13  been  fixed,  the  reasonable  cost  to  the  Library  of  Congress  of 

14  acquiring  them. 

15  §  408.  Copyright  registration  in  general 

16  (a)  Registration^  Permissive. — At  any  time  during  the  subsistence 

17  of  copyright  in  any  published  or  unpublished  work,  the  owner  of 

18  copyright  or  of  any  exclusive  right  in  the  work  may  obtain  registration 

19  of  the  copyright  claim  by  delivering  to  the  Copyright  Office  the  deposit 

20  specified  by  this  section,  together  with  the  application  and  fee  specified 

21  by  sections  409  and  708.  Subject  to  the  provisions  of  section  405(a), 

22  such  registration  is  not  a  condition  of  copyright  protection. 

23  (b)  Deposit  for  Copyright  Registration. — Except  as  provided  by 

24  subsection  (c),  the  material  deposited  for  registration  shall  include: 

25  (1)  in  the  case  of  an  impublished  work,  one  complete  copy  or 

26  phonorecord ; 

27  (2)  in  the  case  of  a  published  work,  two  complete  copies  or 

28  phonorecords  of  the  best  edition ; 

29  (3)  in  the  case  of  a  work  first  published  abroad,  one  complete 

30  copy  or  phonorecord  as  so  published ; 

31  (4)  in  the  case  of  a  contribution  to  a  collective  work,  one  com- 

32  plete  copy  or  phonorecord  of  the  best  edition  of  the  collective 

33  work. 

34  Copies  or  phonorecords  deposited  for  the  Library  of  Congress  imder 

35  section  407  may  be  used  to  satisfy  the  deposit  provisions  of  this  section, 

36  if  they  are  accompanied  by  the  prescribed  application  and  fee,  and  by 

37  any  additional  identifying  material  that  the  Register  may,  by  regula- 

38  tion,  require. 

39  (c)  Administrative  Classification  and  Optional  Deposit. — The 

40  Register  of  Copyrights  is  authorized  to  specify  by  regulation  the 


46 


44 

1  administrative  classes  into  which  works  are  to  be  placed  for  purposes  of 

2  deposit  and  registration,  and  the  nature  of  the  copies  or  phonorecords 

3  to  be  deposited  in  tlie  various  classes  specified.  The  regulations  may 

4  require  or  permit,  for  particular  classes,  the  deposit  of  identifying 

5  material  instead  of  copies  or  phonorecords,  the  deposit  of  only  one  copy 

6  or  phonorecord  where  two  would  normally  be  required,  or  a  single 

7  registration  for  a  group  of  related  works.  This  administrative  classi- 

8  fication  of  works  has  no  significance  with  resj^ect  to  the  subject  matter 

9  of  copyright  or  the  exclusive  rights  provided  by  this  title. 

10  (d)    Corrections  and  Amplifications. — The  Register  may  also 

11  establisih,  by  regulation,  formal  procedures  for  the  filing  of  an  applica- 

12  tion  for  supplementary  registration,  to  corre^^t  an  error  in  a  copyrig'ht 

13  registration  or  to  amplify  the  information  given  in  a  registration.  Such 

14  application  shall  be  accompanied  by  the  fee  provided  by  section  708, 

15  and  shall  clearly  identify  the  registration  to  be  corrected  or  amplified. 

16  The  information  contained  in  a  supplementary  registration  augments 

17  but  does  not  supersede  that  contained  in  the  earlier  registration. 

18  (e)   Published  Edition  of  Previously  Registered  Work. — ^Reg- 

19  istration  for  the  first  published  edition  of  a  work  previously  registered 

20  in  unpublished  form  may  be  made  even  though  the  work  as  published  is 

21  substantially  the  same  as  the  unpublished  version. 

22  §  409.  Application  for  registration 

23  The  application  for  copyright  registration  shall  be  made  on  a  form 

24  prescribed  by  the  Register  of  Copyrights  and  shall  include : 

25  ( 1 )  the  name  and  address  of  the  copyright  claimant ; 

26  (2)   in  the  case  of  a  work  other  than  an  anonymous  or  pseudony- 

27  mous  work,  the  name  and  nationality  or  domicile  of  the  author  or 

28  authors  and,  if  one  or  more  of  the  authors  is  dead,  the  dates  of 

29  their  deaths; 

30  (3)   if  the  work  is  anonymous  or  pseudonymous,  the  nationality 

31  or  domicile  of  the  author  or  authors ; 

32  (4)   in  the  case  of  a  work  made  for  liire,  a  statement  to  this 

33  effect; 

34  (5)   if  the  copyright  claimant  is  not  the  author,  a  brief  state- 

35  ment  of  how  the  claimant  obtained  ownership  of  the  copyright ; 

36  (6)   the  title  of  the  work,  together  with  any  previous  or  alterna- 

37  tive  titles  under  which  the  work  can  be  identified ; 

38  (7)   the  year  in  which  creation  of  t  lie  work  was  completed ; 

39  (8)  if  the  work  has  been  published,  the  date  and  nation  of  its 

40  first  publication ; 


47 


45 

1  (9)  in  the  case  of  a  compilation  or  derivative  work,  an  identi- 

2  fication  of  any  pre-existing  work  or  works  that  it  is  based  on  or 

3  incorporates,  and  a  brief,  general  statement  of  the  additional 
4:  material  covered  by  the  copyright  claim  being  registered; 

5  (10)   in  the  case  of  a  published  work  containing  material  of 

6  which  copies  are  required  by  section  601  to  be  manufactured  in 

7  the  United  States,  the  names  of  the  persons  or  organizations 

8  who  performed  the  processes  specified  by  subsection  (c)  of  sec- 

9  tion  601  with  respect  to  that  material,  and  the  places  where  those 

10  processes  were  performed ;  and 

11  (11)  any  other  information  regarded  by  the  Register  of  Copy- 

12  rights  as  bearing  upon  the  preparation  or  identification  of  the 

13  work  or  the  existence,  ownership,  or  duration  of  the  copyright. 

14  §  410.  Registration  of  claim  and  issuance  of  certificate 

15  (a)  Wlien,  after  examination,  the  Register  of  Copyrights  deter- 

16  mines  that,  in  accordance  with  the  provisions  of  this  title,  the  material 

17  deposited  constitutes  copyrightable  subject  matter  and  that  the  other 

18  legal  and  formal  requirements  of  this  title  have  been  met,  he  shall  reg- 

19  ister  the  claim  and  issue  to  the  applicant  a  certificate  of  registration 

20  under  the  seal  of  the  Copyright  Office.  The  certificate  shall  contain 

21  the  information  given  in  the  application,  together  with  the  number 

22  and  effective  date  of  the  registration. 

23  (b)   In  any  case  in  which  the  Register  of  Copyrights  determines 

24  that,  in  accordance  with  the  provisions  of  this  title,  the  material  de- 

25  posited  does  not  constitute  copyrightable  subject  matter  or  that  the 

26  claim  is  invalid  for  any  other  reason,  he  sail  refuse  registration  and 

27  shall  notify  the  applicant  in  writing  of  the  reasons  for  his  action. 

28  (c)  In  any  judicial  proceedings  the  certificate  of  a  registration  made 

29  before  or  within  five  years  after  first  publication  of  the  work  shall 

30  constitute  prima  facie  evidence  of  the  validity  of  the  copyright  and 

31  of  the  facts  stated  in  the  certificate.  The  evidentiary  weight  to  be 

32  accorded  the  certificate  of  a  registration  made  thereafter  shall  be 

33  within  the  discretion  of  the  court. 

34  (d)   The  effective  date  of  a  copyright  registration  is  the  day  on 

35  which  an  application,  deposit,  and  fee,  which  are  later  determined  by 

36  the  Register  of  Copyrights  or  by  a  court  of  competent  jurisdiction  to 

37  be  acceptable  for  registrtion,  have  all  been  received  in  the  Copyright 

38  Office. 


48 


46 


1  §  411.  Registration  as  pierequisite  to  infringement  suit 

2  (a)   Subject  to  the  provisions  of  subsection  (b),  no  action  for  in- 

3  fringement  of  the  copyright  in  any  work  shall  be  instituted  until 

4  registration  of  the  copyright  claim  has  been  made  in  accordance  with 

5  this  title.  In  any  case,  however,  where  the  deposit,  application,  and  fee 

6  required  for  registration  have  been  delivered  to  the  Copyright  Office 

7  in  proper  form  and  registration  has  been  refused,  the  applicant  is 

8  entitled  to  institute  an  action  for  infringement  if  notice  thereof,  with 

9  a  copy  of  the  complaint,  is  served  on  the  Register  of  Copyrights.  The 

10  Register  may,  at  his  option,  become  a  party  to  the  action  with  respect 

11  to  the  issue  of  registrability  of  the  copyright  claim  by  entering  his 

12  appearance  within  sixty  days  after  such  service,  but  his  failure  to  do 

13  so  shall  not  deprive  the  court  of  jurisdiction  to  determine  that  issue. 

14  (b)  In  the  case  of  a  work  consisting  of  sounds,  images,  or  both,  the 

15  first  fixation  of  which  is  made  simultaneously  with  its  transmission, 

16  the  copyright  owner  may  either  before  or  after  such  fixation  takes 

17  place,  institute  an  action  for  infringement  under  section  501,  fully 

18  subject  to  the  remedies  provided  by  sections  502  through  506,  if.  in 

19  accordance  with  requirements  that  the  Register  of  Copyrights  shall 

20  prescribe  by  regulation,  the  copyright  owner — 

21  (1)   serves  notice  upon  the  infringer,  not  less  than  ten  or  more 

22  than  thirty  days  before  such  fixation,  identifying  the  work  and 

23  the  specific  time  and  source  of  its  first  transmission,  and  declar- 

24  ing  an  intention  to  secure  copyright  in  the  work ;  and 

25  (2)   makes  registration  for  the  work  within  three  months  after 

26  its  first  transmission. 

27  §  412.  Registration    as    prerequisite    to    certain    remedies    for 

28  infringement 

29  In  any  action  under  this  title,  other  than  an  action  instituted  under 

30  section  411  (b) ,  no  award  of  statutory  damages  or  of  attoinoj-'s  fees,  as 

31  provided  by  sections  504  and  505,  shall  be  made  for : 

32  (1)   anj'  infringement  of  copyright  in  an  unpublished  work 

33  commenced  before  the  effective  date  of  its  registration;  or 

34  (2)   any  infringement  of  copyright  commenced  after  first  pub- 

35  lication  of  the  work  and  before  the  effective  date  of  its  registra- 

36  tion,  unless  such  registration  is  made  within  three  months  after 

37  its  first  publication. 


49 


47 

1  Chapter  5.— COPYRIGHT  INFRINGEMENT  AND  REMEDIES 

Sec. 

501.  Infringement  of  copyright. 

502.  Remedies  for  infringement :  Injunctions. 

503.  Remedies    for    infringement :    Impounding   and    disposition    of   infringing 

articles. 

504.  Remedies  for  infringement :  Damages  and  profits. 

505.  Remedies  for  infringement :  Costs  and  attorney's  fees. 

506.  Criminal  offenses. 

507.  Limitations  on  actions. 

508.  Notification  of  filing  and  determination  of  actions. 

2  §  501.  Infringement  of  copyright 

3  (a)  Anyone  who  violates  any  of  the  exclusive  rights  of  the  copy- 

4  right  owner  as  provided  by  sections  106  through  117,  or  who  imports 

5  copies  or  phonorecords  into  the  United  States  in  violation  of  section 

6  602,  is  an  infringer  of  the  copyright. 

7  (b)   The  legal  or  beneficial  owner  of  an  exclusive  right  under  a 

8  cojiyright  is  entitled,  subject  to  the  requirements  of  sections  205(d) 

9  and  411,  to  institute  an  action  for  any  infringement  of  that  particular 

10  right  committed  while  he  is  the  owner  of  it.  The  court  may  require 

11  him  to  serve  written  notice  of  the  action  with  a  copy  of  the  complaint 

12  upon  any  person  shown,  by  the  records  of  the  Copyright  Office  or 

13  otherwise,  to  have  or  claim  an  interest  in  the  copyright,  and  shall  re- 

14  quire  that  such  notice  be  served  upon  any  person  whose  interest  is 

15  likely  to  be  affected  by  a  decision  in  the  case.  The  court  may  require 

16  the  joinder,  and  shall  permit  the  intervention,  of  any  person  having 

17  or  claiming  an  interest  in  the  copyright. 

18  (c)   For  any  secondary  transmission  by  a  cable  system  that  em- 

19  bodies  a  performance  or  a  display  of  a  work  which  is  actionable  as  an 

20  act  of  infringement  under  subsection  (c)  of  section  111,  a  television 

21  broadcast  station  holding  a  copyright  or  other  license  to  transmit  or 

22  j)erf  orm  the  same  version  of  that  work  shall,  for  purposes  of  subsection 

23  (b)  of  this  section,  be  treated  as  a  legal  or  beneficial  owner  if  such 

24  secondary  transmission  occurs  within  the  local  service  area  of  that 

25  television  station. 

26  §  502.  Remedies  for  infringement:  Injunctions 

27  (a)  Any  court  having  jurisdiction  of  a  civil  action  arising  under 

28  this  title  may,  subject  to  the  provisions  of  section  1498  of  title  28, 

29  grant  temporary  and  final  injunctions  on  such  terms  as  it  may  deem 

30  reasonable  to  prevent  or  restrain  infringement  of  a  copyright. 

31  (b)  Any  such  injunction  may  be  served  anywhere  in  the  United 

32  States  on  the  person  enjoined;  it  shall  be  operative  throughout  the 

33  United  States  and  shall  be  enforceable,  by  proceedings  in  contempt  or 

34  otherwise,  by  any  United  States  court  having  jurisdiction  of  that  per- 


50 


48 


1  son.  The  clerk  of  the  court  granting  the  injunction  shall,  when  re- 

2  quested  by  any  other  court  in  which  enforcement  of  the  injunction  is 

3  sought,  transmit  promptly  to  the  other  court  a  certified  copy  of  all 

4  the  papers  in  the  case  on  file  in  his  office. 

'5  §  503.  Remedies  for  infringement :  Impounding  and  disposition  of 

6  infringing  articles 

7  (a)   At  any  time  while  an  action  under  this  title  is  pending,  the  court 

8  may  order  the  impounding,  on  such  terms  as  it  may  deem  reasonable, 

9  of  all  copies  or  phonorecords  claimed  to  have  been  made  or  used  in  vio- 

10  lation  of  the  copyright  owner's  exclusive  rights,  and  of  all  plates, 

11  molds,  matrices,  masters,  tapes,  film  negatives,  or  other  articles  by 

12  means  of  which  such  copies  or  phonorecords  may  be  reproduced. 

13  (b)  As  part  of  a  final  judgment  or  decree,  the  court  may  order  the 

14  destruction  or  other  reasonable  disposition  of  all  copies  or  phonorec- 

15  ords  found  to  have  been  made  or  used  in  violation  of  the  copyright 

16  owner's  exclusive  rights,  and  of  all  plates,  molds,  matrices,  masters, 

17  tapes,  film  negatives,  or  other  articles  by  means  of  which  such  copies 

18  or  phonorecords  may  be  reproduced. 

19  §  504.  Remedies  for  infringement :  Damages  and  profits 

20  (a)  In  General. — Except  as  otherwise  provided  by  this  title,  an  in- 

21  f ringer  of  copyright  is  liable  for  either : 

22  (1)  the  copyright  owner's  actual  damages  and  any  additional 

23  profits  of  the  infringer,  as  provided  by  subsection  (b)  ;  or 

24  (2)   statutory  damages,  as  provided  by  subsection  (c). 

25  (b)  Actual  Damages  and  Profits. — The  copyright  owner  is  en- 

26  titled  to  recover  the  actual  damages  suffered  by  him  as  a  result  of  the 

27  infringement,  and  any  profits  of  the  infringer  that  are  attributable  to 

28  the  infringement  and  are  not  taken  into  account  in  computing  the 

29  actual  damages.  In  establishing  the  infringer's  profits,  the  copyright 

30  owner  is  required  to  present  proof  only  of  the  infringer's  gross  revenue, 

31  and  the  infringer  is  required  to  prove  his  deductible  expenses  and  the 

32  elements  of  profit  attributable  to  factors  other  than  the  copyrighted 

33  work. 

34  (c)   Statutory  Damages.— 

35  (1)  Except  as  provided  by  clause  (2)  of  this  subsection,  the 

36  copyright  owner  may  elect,  at  any  time  before  final  judgment  is 

37  rendered,  to  recover,  instead  of  actual  damages  and  profits,  an 

38  award  of  statutory  damages  for  all  infringements  involved  in 

39  the  action,  with  respect  to  any  one  work,  for  winch  any  one 

40  infringer  is  liable  individually,  or  for  which  any  two  or  more 


51 


49 

1  infrinjjers  are  liable  jointly  and  severally,  in  a  sum  of  not  less 

2  than  $250  or  more  tlian  $10,000  as  the  court  considers  just.  For 

3  the  purposes  of  this  subsection,  all  the  parts  of  a  compilation  or 

4  derivati\-e  Avoi'k  constitute  one  work. 

5  (2)  Tn  a  case  where  the  copyright  owner  sustains  the  burden 

6  of  provin<r,  and  the  court  finds,  that  infrin<rement  was  committed 

7  willfully,  tlie  court  in  its  discretion  may  increase  the  award  of 

8  statutory  damages  to  a  smn  of  not  more  than  $50,000.  In  a  case 

9  where  the  infringer  sustains  the  burden  of  proving,  and  the  court 

10  finds,  that  he  was  not  aware  and  had  no  reason  to  believe  that  his 

11  acts  constituted  an  infringement  of  copyright,  the  court  in  its 

12  discretion  may  reduce  tlie  award  of  statutory  damages  to  a  sum 

13  of  not  less  than  $100.  In  a  case  where  an  instructor,  librarian  or 

14  archivist  in  a  nonprofit  educational  institution,  library,  or  ar- 

15  chives,  who  infringed  by  reproducing  a  copyrighted  work  in  copies 

16  or  phonorecords,  sustains  the  burden  of  proA'ing  that  he  believed 

17  and  had  reasonable  grounds  for  believing  that  the  reproduction 

18  was  a  fair  use  under  section  107,  the  court  in  its  discretion  may 

19  remit  statutory  damages  in  whole  or  in  part. 

20  §  505.  Remedies  for  infringement:  Costs  and  attorney's  fees 

21  In  any  civil  action  under  tjiis  title,  the  court  in  its  discretion  may 

22  allow  the  recovery  of  full  costs  by  or  against  any  party  other  than 

23  the  United  States  or  an  officer  thereof.  Except  as  otherwise  provided 

24  by  this  title,  the  court  may  also  award  a  reasonable  attorney's  fee  to 

25  the  prevailing  party  as  part  of  the  costs. 

26  §  506.  Criminal  offenses 

27  (a)     Criiminai.    Infringement. — Any    person    who    infringes    a 

28  copyright  willfully  and  for  purposes  of  commercial  advantage  or  pri- 

29  vate  financial  gain  shall  be  fined  not  more  than  $2,500  or  imprisoned 

30  not  more  than  one  year,  or  both,  for  the  first  such  offense,  and  shall 

31  be  fined  not  more  than  $10,000  or  imprisoned  not  more  than  three 

32  years,  or  both,  for  any  subsequent  oft'ense,  provided  however,  that  any 

33  person  wlio  infringes  willfully  and  for  purposes  of  commercial  advan- 

34  tage  or  private  financial  gain  the  copyright  in  a  sound  recording 

35  afforded  by  subsections  (1)  and  (3)  in  section  106  or  the  copyright  in 

36  a  motion  picture  afforded  by  subsections  (1),  (3),  and  (4)  in  section 

37  106  shall  be  fined  not  more  than  $25,000  or  imprisoned  for  not  more 

38  than  one  year,  or  both,  for  the  first  such  offense  and  shall  be  fined 

39  not  more  than  $50,000  or  imprisoned  not  more  than  two  years,  or 

40  both,  for  any  subsequent  offense. 


52 


50 


1  (h)  Fraudulent  Copyrioht  Notice. — Any  person  who,  with  fraud- 

2  nlent  intent,  places  on  any  article  a  notice  of  copyright  or  words  of 

3  the  same  purport  that  he  knows  to  be  false,  or  who,  with  fraudulent 

4  intent,  publicly  distributes  or  imports  for  public  distribution  any 

5  article  bearing  such  notice  or  words  that  he  knows  to  be  false,  shall  be 

6  fined  not  more  than  $2,500. 

7  (c)  Frauoulext  Removal  of  CopYr.iciiT  Notice. — Any  person  who, 

8  with  fraudulent  intent,  removes  or  alters  any  notice  of  copyright 

9  appearing  on  a  copy  of  a  copyrighted  work  shall  be  fined  not  more 

10  than  $2,500. 

11  (d)  False  Representation. — Any  person  who  knowingly  makes  a 

12  false  representation  of  a  material  fact  in  the  application  for  copyright 

13  registration  provided  for  by  secton  409,  or  in  any  written  statement 

14  filed  in  connection  with  the  application,  shall  be  fined  not  more  than 

15  $2,500. 

16  §  507.  Limitations  on  actions 

17  (a)  Criminal  Proceedings.— No  criminal  proceeding  shall  be  main- 

18  tained  under  the  provisions  of  this  title  unless  it  is  commenced  within 

19  three  years  after  the  cause  of  action  ai'ose. 

20  (b)   Civil  Actions. — No  civil  action  shall  be  maintained  under  the 

21  provisions  of  this  title  unless  it  is  commenced  within  three  years  after 

22  the  claim  accrued. 

23  §  508.  Notification  of  filing  and  determination  of  actions 

24  (a)   Within  one  month  softer  the  filing  of  any  action  under  this  title, 

25  the  clerks  of  the  courts  of  the  United  States  shall  send  written  notifica- 

26  tion  to  the  Register  of  Copyrights  setting  forth,  as  far  as  is  shown 

27  by  the  papers  filed  in  the  court,  the  names  and  addresses  of  the  parties 

28  and  the  title,  author,  and  registration  number  of  each  work  involved 

29  in  the  action.  If  ajiy  other  copyrighted  work  is  later  included  in  the 

30  action  by  amendment,  answer,  or  other  pleading,  the  clerk  shall  also 

31  send  a  notification  concerning  it  to  tlie  Register  within  one  month 

32  after  the  pleading  is  filed. 

33  (b)   Within  one  month  after  any  final  order  or  judgment  is  issued 

34  in  tlie  case,  the  clerk  of  the  court  shall  notify  the  Register  of  it, 

35  sending  him  a  copy  of  the  order  or  judgment  together  with  the  written 

36  opinion,  if  any,  of  the  court. 

37  (c)   Upon  receiving  the  notifications  specified  in  this  section,  the 

38  Registei'  shall  make  them  a  part  of  the  public  records  of  the  Copyright 

39  Office. 


53 


51 

1  Chapter  6.— MANUFACTURING  REQUIREMENT  AND 

2  IMPORTATION 

Sec. 

601.  Manufacture,  importation,  and  public  distribution  of  certain  copies. 

602.  Infringing  importation  of  copie.s  or  phonorecord.s. 

603.  Importation  prohibitions  :  Enforcement  and  disposition  of  excluded  articlea 

3  §  601.  Manufacture,  importation,  and  public  distribution  of  cer- 

4  tain  copies 

5  (a)  Except  as  provided  by  subsection  (b),  the  importation  into  or 

6  public  distribution  in  the  United  States  of  copies  of  a  work  consisting 

7  preponderantly  of  nondramatic  literary  material  that  is  in  the  English 

8  language  and  is  protected  under  this  title  is  prohibited  unless  the 

9  i^ortions  consisting  of  such  material  have  been  manufactured  in  the 

10  United  States  or  Canada. 

11  ( b )  The  provisions  of  subsection  ( a )  do  not  apply : 

12  (1)  where,  on  the  date  when  importation  is  sought  or  public 

13  distribution  in  the  United  States  is  made,  the  author  of  any  sub- 

14  stantial  part  of  such  material  is  neither  a  national  nor  a  domicil- 

15  iary  of  the  United  States  or,  if  he  is  a  national  of  the  United 

16  States,  has  been  domiciled  outside  of  the  United  States  for  a 

17  continuous  period  of  at  least  one  year  immediately  preceding  that 

18  date ;  in  the  case  of  work  made  for  hire,  the  exemption  provided 

19  by  this  clause  does  not  apply  unless  a  substantial  part  of  the  work 

20  was  prepared  for  an  employer  or  other  person  who  is  not  a  na- 

21  tional  or  domiciliary  of  the  United  States  or  a  domestic  corpora- 

22  tion  or  enterprise ; 

23  (2)  where  the  Bureau  of  Customs  is  presented  with  an  import 

24  statement  issued  under  the  seal  of  the  Copyright  Office,  in  which 

25  case  a  total  of  no  more  than  two  thousand  copies  of  any  one  such 

26  work  shall  be  allowed  entry ;  the  import  statement  shall  be  issued 

27  upon  request  to  the  copyright  owner  or  to  a  person  designated  by 

28  bim  at  the  time  of  registration  for  the  work  under  section  408 

29  or  at  any  time  thereafter ; 

30  (3)  where  importation  is  sought  under  the  authority  or  for  the 

31  use,  other  than  in  schools,  of  the  government  of  the  United  States 

32  or  of  any  State  or  political  subdivision  of  a  State ; 

33  (4)  where  importation,  for  use  and  not  for  sale,  is  sought: 

34  (A)  by  any  person  with  respect  to  no  more  than  one  copy 

35  of  any  one  work  at  any  one  time ; 

36  (B)  by  any  person  arriving  from  abroad,  with  respect  to 

37  copies  forming  part  of  his  personal  baggage ;  or 


54 


52 

1  (C)    by  an  organization  operated  for  scholarly,  educa- 

2  tional,  or  religious  purposes  and  not  for  private  gain,  with 

3  respect  to  copies  intended  to  form  a  part  of  its  library ; 

4  (5)  where  the  copies  are  reproduced  in  raised  characters  for 

5  the  use  of  the  blind ; 

6  (6)  where,  in  addition  to  copies  imported  under  clauses  (3) 

7  and  (4)  of  this  subsection,  no  more  than  two  thousand  copies  of 

8  any  one  such  work,  which  have  not  been  manufactured  in  the 

9  United  States  or  Canada,  are  publicly  distributed  in  the  United 

10  States. 

11  (c)  The  requirement  of  this  section  that  copies  be  manufactured  in 

12  the  United  States  or  Canada  is  satisfied  if : 

13  (1)  in  the  case  where  the  copies  are  printed  directly  from  type 

14  that  has  been  set,  or  directly  from  plates  made  from  such  type, 

15  the  setting  of  the  type  and  the  making  of  the  plates  have  been 

16  performed  in  the  United  States  or  Canada ;  or 

17  (2)  in  the  case  where  the  making  of  plates  by  a  lithographic 

18  or  photoengraving  process  is  a  final  or  intermediate  step  preceding 

19  the  printing  of  the  copies,  the  making  of  the  plates  has  been  per- 

20  formed  in  the  United  States  or  Canada ;  and 

21  (3)  in  any  case,  the  printing  or  other  final  process  of  producing 

22  multiple  copies  and  any  binding  of  the  copies  have  been  performed 

23  in  the  United  States  or  Canada. 

24  (d)   Importation  or  public  distribution  of  copies  in  violation  of 

25  this  section  does  not  invalidate  protection  for  a  work  under  this  title. 

26  However,  in  any  civil  action  or  criminal  proceeding  for  infringement 

27  of  the  exclusive  rights  to  reproduce  and  distribute  copies  of  the  work, 

28  the  infringer  has  a  complete  defense  with  respect  to  all  of  the  non- 
29  dramatic  literary  material  comprised  in  the  work  and  any  other  parts 

30  of  the  work  in  which  the  exclusive  rights  to  reproduce  and  distribute 

31  copies  are  owned  by  the  same  person  who  owns  such  exclusive  rights 

32  in  the  nondramatic  literary  material,  if  he  proves : 

33  (1)  that  copies  of  the  work  have  been  im^wrted  into  or  publicly 

34  distributed  in  the  United  States  in  violation  of  this  section  by  or 

35  with  the  authority  of  the  owner  of  such  exclusive  rights ;  and 

36  (2)  that  the  infringing  copies  were  manufactured  in  the  United 

37  States  or  Canada  in  accordance  with  the  provisions  of  subsection 

38  (c) ; and 

39  (3)  that  the  infringement  was  commenced  before  the  effective 


55 


53 

1  date  of  registration  for  an  authorized  edition  of  the  work,  the 

2  copies  of  which  have  been  manufactured  in  the  United  States  or 

3  Canada  in  accordance  with  the  provisions  of  subsection  (c). 

4  (e)  In  any  action  for  infringement  of  the  exclusive  rights  to  repro- 

5  duce  and  distribute  copies  of  a  work  containing  material  required  by 

6  this  section  to  be  manufactured  in  the  United  States  or  Canada,  the 

7  copyright  owner  shall  set  forth  in  the  complaint  the  names  of  the  per- 

8  sons  or  organizations  who  performed  the  processes  specified  by  subsec- 

9  tion   (c)   with  respect  to  that  material,  and  the  places  where  those 

10  processes  were  performed. 

11  §  602.  Infringing  importation  of  copies  or  phonorecords 

12  (a)  Importation  into  the  United  States,  without  the  authority  of 

13  the  owner  of  copyright  under  this  title,  of  copies  or  phonorecords  of 

14  a  work  that  have  been  acquired  albroad  is  an  infringement  of  the 

15  exclusive  right  to  distribute  copies  or  phonorecords  under  section  106, 

16  actionable  under  section  501.  This  subsection  does  not  apply  to : 

17  (1)  importation  of  copies  or  phonorecords  under  the  authority 

18  or  for  the  use  of  the  government  of  the  United  States  or  of  any 

19  State  or  political  subdivision  of  a  State  but  not  including  copies 

20  or  phonorecords  for  use  in  schools,  or  copies  of  any  audiovisual 

21  work  imported  for  purposes  other  than  archival  use ; 

22  (2)  importation,  for  the  private  use  of  the  importer  and  not 

23  for  distribution,  by  any  person  with  respect  to  no  more  than  one 

24  copy  or  phonorecord  of  any  one  work  at  any  one  time,  or  by  any 

25  person  arriving  from  abroad  with  respect  to  copies  or  phono- 

26  records  forming  part  of  his  personal  baggage;  or 

27  (3)  importation  by  or  for  an  organization  operated  for  schol- 

28  arly,  educational,  or  religious  purposes  and  not  for  private  gain, 

29  with  respect  to  no  more  than  one  copy  of  an  audiovisual  work 

30  solely  for  its  archival  purposes,  and  no  more  than  five  copies  or 

31  phonorecords  of  any  other  work  for  its  library  lending  or  archival 

32  purposes. 

33  (b)  In  a  case  where  the  making  of  tlie  copies  or  phonorecords  would 

34  have  constituted  an  infringement  of  copyright  if  this  title  had  been 

35  applicable,  their  importation  is  prohibited.  In  a  case  where  the  copies 

36  or  phonorecords  were  lawfully  made,  the  Bureau  of  Customs  has  no 

37  authority  to  prevent  their  importation  unless  the  provisions  of  section 

38  601  are  applicable.  In  either  case,  the  Secretary  of  tlic  Treasury  is 

39  authorized  to  prescribe,  by  regulation,  a  procedure  under  which  any 


56 


54 

1  person  claiming  an  interest  in  the  copyright  in  a  particular  work  may, 

2  upon  payment  of  a  specified  fee.  be  entitled  to  notification  by  the 

3  Bureau  of  the  importation  of  articles  that  appear  to  be  copies  or 

4  phonorecords  of  the  work. 

5  §603.  Importation  prohibitions:  Enforcement  and  disposition  of 

6  excluded  articles 

7  (a)  The  Secretary  of  the  Treasui'V  and  the  United  States  Postal 

8  Service  shall  separately  or  jointly  make  regulations  for  the  enforce- 

9  ment  of  the  provisions  of  this  title  prohibiting  importation. 

10  (b)  These  regulations  may  require,  as  a  condition  for  the  exclusion 

11  of  articles  under  section  602 : 

12  (1)    that  the  person  seeking  exclusioii  obtain  a  court  order 

13  enjoining  importation  of  the  articles;  or 

14  (2)  that  he  furnish  proof,  of  a  specified  nature  and  in  accoid- 

15  ance  with  prescribed  procedures,  that  the  copyright  in  which  he 

16  claims  an  interest  is  valid  and  that  the  importation  would  violate 

17  the  prohibition  in  section  602 ;  he  may  also  be  required  to  post  a 

18  surety  bond  for  any  injury  that  may  result  if  the  detention  or 

19  exclusion  of  the  articles  proves  to  be  unjustified. 

20  (c)  Articles  imported  in  violation  of  the  importation  prohibitions 

21  of  this  title  are  subject  to  seizure  and  forfeiture  in  the  same  manner 

22  as  property  imported  in  violation  of  the  customs  revenue  laws.  For- 

23  feited  articles  shall  be  destroyed  as  directed  by  the  Secretary  of  the 

24  Treasury  or  tlie  court,  as  the  case  may  be :  howevei-,  the  articles  may  be 

25  returned  to  the  countiy  of  export  whenever  it  is  shown  to  the  satisfac- 

26  tion  of  the  Secretary  of  the  Treasury  that  the  importer  had  no  reasftn- 

27  able  grounds  for  believing  that  his  acts  constituted  a  violation  of  law. 

28  Chapter  7.— COPYRIGHT  OFFICE 

Sec. 

701.  The  Copyright  Office :  General  responsibilities  and  organization. 

702.  Copyright  Office  regulations. 

703.  Effective  date  of  actions  in  Copyright  Office. 

704.  Retention  and  disposition  of  articles  deposited  in  Copyright  Office. 

705.  Copyright  Office  records:  Preparation,  maintenance,  public  inspection,  and 

searching. 

706.  Copies  of  Copyright  Office  records. 

707.  Copyright  Office  forms  and  publications. 

708.  Copyriglit  Off.ce  fees. 

709.  Delay  in  delivery  caused  by  disruption  of  jiostal  or  other  services. 

29  §701.  The  Copyright  Office:  General  responsibilities  and  organi- 

30  zation 

31  (a)   All  administrative  functions  and  duties  under  this  title,  ex- 

32  cept  as  otherwise  specified,  are  the  responsibility  of  the  Register  of 

33  Copyrights  as  director  of  the  Copyright  Office  in  the  Library  of  Con- 


57 


55 

1  gress.  The  Register  of  Copyrights,  together  with  the  subordinate 

2  officers  and  employees  of  the  Copyright  Office,  sliall  be  appointed  by 

3  the  Librarian  of  Congress,  and  shall  act  under  his  general  direction 
4:  and  supervision. 

5  (b)  The  Register  of  Copyrights  shall  adopt  a  seal  to  be  used  on 

6  and  after  January   1,  1977,  to  authenticate  all  certified  documents 

7  issued  by  the  Copyright  Office. 

8  (c)   The  Register  of  Copyrights  shall  make  an  annual  report  to 

9  the  Librarian  of  Congress  of  the  work  and  accomplishments  of  the 

10  Copyright  Office  during  the  previous  fiscal  year.  The  annual  report 

11  of  the  Register  of  Copyrights  shall  be  published  separately  and  as 

12  a  part  of  the  annual  report  of  the  Librarian  of  Congress. 

13  §  702.  Copyright  Office  regulations 

14  The  Register  of  Copyrights  is  authorized  to  establish  regulations 

15  not  inconsistent  with  law  for  the  administration  of  the  functions  and 

16  duties  made  his  responsibility  under  this  title.  All  regulations  estab- 

17  lished  by  the  Register  under  this  title  are  subject  to  the  approval  of 

18  the  Librarian  of  Congress. 

19  §703.  EfiFective  date  of  actions  in  Copyright  Office 

20  In  any  case  in  which  time  limits  are  prescribed  under  this  title 

21  for  the  performance  of  an  action  in  the  Copyright  Office,  and  in 

22  which  the  last  day  of  the  prescribed  period  falls  on  a  Saturday,  Sun- 

23  day,  holiday  or  other  non-business  day  within  the  District  of  Colum- 

24  bia  or  the  Federal  Grovernment,  the  action  may  be  taken  on  the  next 

25  succeeding  business  day,  and  is  effective  as  of  the  date  when  the 

26  period  expired. 

27  §  704.  Retention  and  disposition  of  articles  deposited  in  Copyright 

28  Office 

29  (a)  Upon  their  deposit  in  the  Copyright  Office  under  sections  407 

30  and  408,  all  copies,  phonorecords,  and  identifying  material,  including 

31  those  deposited  in  connection  with  claims  that  have  been  refused 

32  registration,  are  tlie  property  of  the  United  States  Government. 

33  (b)  In  the  case  of  published  works,  all  copies,  phonorecords.  and 

34  identifying  material  deposited  are  available  to  the  Library  of  Con- 

35  gress  for  its  collections,  or  for  exchange  or  transfer  to  any  other 

36  library.  In  the  case  of  unpublished  works,  the  Library  is  entitled  to 

37  select  any  deposits  for  its  collections. 

38  (c)  Deposits  not  selected  by  the  Library  under  subsection  (b),  or 

39  identifying  portions  or  reproductions  of  them,  shall  be  retained  under 

40  the  control  of  the  Copyright  Office,  including  rentention  in  Go\crn- 

57-786   O  -  76  -  pt.  1  -  5 


58 


56 

1  ment  storage  facilities,  for  the  longest  period  considered  practicable 

2  and  desirable  by  the  Register  of  Copyrights  and  the  Librarian  of 

3  Congress.  After  that  period  it  is  within  the  joint  discretion  of  the 

4  Register  and  the  Librarian  to  order  their  destruction  or  other  disposi- 

5  tion ;  but,  in  the  case  of  unpublished  works,  no  deposit  shall  be  de- 

6  stroyed  or  otherwise  disposed  of  during  its  term  of  copyright. 

7  (d)  The  depositor  of  copies,  phonorecords,  or  identifying  material 

8  imder  section  408,  or  the  copyright  owner  of  record,  may  request 

9  retention,  under  the  control  of  the  Copyright  Office,  of  one  or  more 

10  of  such  articles  for  the  full  term  of  copyright  in  the  work.  The  Regis- 

11  ter  of  Copyright  shall  prescribe,  by  regulation,  the  conditions  under 

12  which  such  requests  are  to  be  made  and  granted,  and  shall  fix  the 

13  fee  to  be  charged  under  section  708(a)  (11)  if  the  request  is  granted. 

14  §705.  Copyright  Office  records:  Preparation,  maintenance,  public 

15  inspection,  and  searching 

16  (a)  The  Register  of  Copyrights  shall  provide  and  keep  in  the  Copy- 

17  right  Office  records  of  all  deposits,  registrations,  recordations,  and 

18  other  actions  taken  under  this  title,  and  shall  prepare  indexes  of  all 

19  such  records. 

20  (b)  Such  records  and  indexes,  as  well  as  the  articles  deposited  in 

21  connection  with  completed  copyright  registrations  and  retained  under 

22  the  control  of  the  Copyright  Office,  shall  be  open  to  public  inspection. 

23  (c)  Upon  request  and  payment  of  the  fee  specified  by  section  708, 

24  the  Copyright  Office  shall  make  a  search  of  its  public  records,  indexes, 

25  and  deposits,  and  shall  furnish  a  report  of  the  information  they  dis- 

26  close  with  respect  to  any  particular  deposits,  registrations,  or  recorded 

27  documents. 

28  §  706.  Copies  of  Copyright  Office  records 

29  (a)   Copies  may  be  made  of  any  public  records  or  indexes  of  the 

30  Copyright  Office ;  additional  certificates  of  copyright  registration  and 

31  copies  of  any  public  records  or  indexes  may  be  furnished  upon  request 

32  and  payment  of  the  fees  specified  by  section  708. 

33  (b)   Copies  or  reproductions  of  deposited  articles  retained  under 

34  the  control  of  the  Copyright  Office  shall  be  authorized  or  furnished 

35  only  under  the  conditions  specified  by  the  Copyright  Office  regulations. 

36  §  707.  Copyright  Office  forms  and  publications 

37  (a)  Catalog  of  Copyright  Entries. — The  Register  of  Copyrights 

38  shall  compile  and  publish  at  periodic  intervals  catalogs  of  all  copy- 

39  right  registrations.  These  catalogs  shall  be  divided  into  parts  in 

40  accordance  with  the  various  classes  of  works,  and  the  Register  has 


59 


57 

1  discretion  to  determine  on  the  basis  of  practicability  and  usefulness, 

2  the  form  and  frequency  of  publication  of  each  particular  part. 

3  (b)    Other   Pubi.ications. — The  Register  shall   furnish,  free  of 

4  charge  upon  request,  application  forms  for  copyright  registration  and 

5  general  informational  material  in  connection  with  the  functions  of  the 

6  Copyright  Office.  He  also  has  authority  to  publish  compilations  of 

7  information,  bibliographies,  and  other  material  he  considers  to  be 

8  of  value  to  the  public. 

9  (c)  Distribution  of  Publications. — All  publications  of  the  Copy- 

10  right  Office  shall  be  furnished  to  depository  libraries  as  specified  under 

11  section  1905  of  title  44.  United  States  Code,  and,  aside  from  those  fur- 

12  nished  free  of  charge,  shall  be  offered  for  sale  to  the  public  at  prices 

13  based  on  the  cost  of  reproduction  and  distribution. 

14  §  708.  Copyright  Office  fees 

15  (a)  The  following  fees  shall  be  paid  to  the  Register  of  Copyrights: 

16  ( 1 )  for  the  registration  of  a  copyright  claim  or  a  supplementary 

17  registration  under  section  408,  including  the  issuance  of  a  certifi- 

18  cate  of  registration,  $6 ; 

19  (2)  for  the  registration  of  a  claim  to  renewal  of  a  subsisting 

20  copyright  in  its  first  term  under  section  304(a),  including  the 

21  issuance  of  a  certificate  of  registration,  $4; 

22  (3)   for  the  issuance  of  a  receipt  for  a  deposit  under  section 

23  407,  $2; 

24  (4)  for  the  recordation,  as  provided  by  section  205,  of  a  transfer 

25  of  copyright  ownership  or  other  document  of  six  pages  or  less, 

26  covering  no  more  than  one  title,  $5 ;  for  each  page  over  six  and 

27  for  each  title  over  one,  50  cents  additional ; 

28  (5)  for  the  filing,  under  section  115(b),  of  a  notice  of  intention 

29  to  make  phonorecords,  $3 ; 

30  (6)  for  the  i-ecordation,  under  section  302(c),  of  a  statement 

31  revealing  the  identity  of  an  author  of  an  anonymous  or  pseu- 

32  donymous  work,  or  for  the  recordation,  under  section  302(d) ,  of  a 

33  statement  relating  to  the  death  of  an  author,  $5  for  a  document  of 

34  six  pages  or  less,  covering  no  more  than  one  title;  for  each  page 

35  over  six  and  for  each  title  over  one,  50  cents  additional ; 

36  (7)    for  the  issuance,  under  section  601,  of  an  import  state- 

37  ment,  $3; 

38  (8)  for  tlie  issuance,  under  section  706,  of  an  additional  certifi- 

39  cate  of  registration,  $2 ; 


60 


58 

1  (9)  for  the  issuance  of  any  other  certification,  $3;  the  Register 

2  of  Copyri<rhts  has  discretion,  on  the  'basis  of  their  cost,  to  fix  the 

3  fees  for  preparing:  copies  of  Copyright  Office  records,  whether 

4  they  are  to  be  certified  or  not ; 

5  (10)  for  the  making  and  reporting  of  a  search  as  provided  by 

6  section  705.  and  for  any  related  services,  $5  for  each  hour  or  frac- 

7  tion  of  an  hour  consumed ; 

8  (11)    for   any   other   special   services  requiring  a   substantial 

9  amount  of  time  or  expense,  sucli  fees  as  the  Register  of  Copyrights 

10  may  fix  on  the  basis  of  the  cost  of  providing  the  service. 

11  (b)  The  fees  prescribed  by  or  under  this  section  are  applicable  to  the 

12  United   States  Government   and   any  of  its  agencies,  employees,  or 

13  officers,  but  the  Register  of  Copyrights  has  discretion  to  waive  the 

14  requirement  of  this  subsection  in  occasional  or  isolated  cases  involving 

15  relatively  sinall  amoimts. 

16  §  709.  Delay  in  delivery  caused  by  disruption  of  postal  or  other 

17  services 

18  Tn  any  cas<e  in  which  the  Register  of  Copyright  determines,  on  the 

19  basis  of  such  evidence  as  he  may  by  rejtulation  require,  that  a  deposit, 

20  application,  fee,  or  any  otiier  material  to  be  delivered  to  the  Copyright 

21  Office  by  a  particular  date,  would  have  been  received  in  the  Copyright 

22  Office  in  due  time  except  for  a  general  disruption  or  suspension  of 

23  [)ostal  or  other  transportation  or  communications  services,  the  actual 

24  receipt  of  such  material  in  the  Copyright  Office  within  one  month  after 

25  the  date  on  which  the  Register  determines  that  the  disruption  or  sus- 

26  pension  of  such  services  has  terminated,  shall  be  considered  timely. 

27  Chapter  8.— COPYRIGHT  ROYALTY  TRIBUNAL 

Sec. 

SOI.  Copyright  Royalty  Tribunal:   Establislunent  and  purpose. 

802.  Petitions  for  the  adjustment  of  roj-alty  rates. 

803.  Membership  of  the  Tribunal. 

804.  Procedures   of   the   Tribunal. 

805.  Compensation  of  members  of  the  Triliunal  ;  expenses  of  the  Tribunal. 

806.  Reports  to  the  Congre.ss. 

807.  Effective  date  of  royalty  adjustment. 

808.  Effective  date  of  royalty  distribution. 

809.  .Judicial  renew. 

28  §  801.  Copyright  Royalty  Tribunal :  Establishment  and  purpose 

29  (a)  There  is  hereby  created  in  tJie  Library  of  Congress  a  Copyright 

30  Royalty  Tril)unal. 

31  (b)   Subject  to  the  piovisions  of  this  chapter,  the  purpose  of  the 

32  Tribunal  shall  be:  (1)  to  make  determinations  concerning  the  adjust- 

33  ment  of  the  copyright  royalty  rates  specified  by  sections  111  and  11;") 

34  so  as  to  assure  that  such  rates  are  reasonable  and  in  the  event  that  the 


61 


59 


1  Tribunal  shall  determine  that  the  statutory  royalty  rate,  or  a  rate  pre- 

2  viously  established  by  tlie  Tribunal,  or  the  revenue  basis  in  respect  to 

3  section  111,  does  not  provide  a  reasonable  royalty  fee  for  the  basic 

4  service  of  providing  secondary  transmissions  of  the  primary  broad- 

5  cast  transmitter  or  is  otherwise  unreasonable,  the  Tribunal  may  change 

6  the  royalty  rate  or  the  revenue  basis  on  which  the  royalty  fee  shall  be 

7  assessed  or  both  so  as  to  assure  reasonable  royalty  fee;  and  (2)  to  de- 

8  termine  in  certain  circumstances  the  distribution  of  the  royalty  fees 

9  deposited  with  the  Register  of  Copyrights  under  sections  111  and  116. 

10  §  802,  Petitions  for  the  adjustment  of  royalty  rates 

11  (a)   On  July  1.  1977,  the  Register  of  Copyrights  shall  cause  to  be 

12  published  in  the  Federal  Register  notice  of  the  commencement  of  pro- 

13  ceedings  for  the  review  of  the  royalty  rate  specified  by  sections  111 

14  and  115. 

15  (b)   During  the  calendar  year  1981,  and  in  each  subsequent  fifth 

16  calendar  year,  any  owner  or  user  of  a  copyrighted  work  whose  royalty 

17  rates  are  specified  by  this  title,  or  by  a  rate  established  by  the  Tri- 

18  bunal,  may  file  a  petition  with  the  Register  of  Copyrights  declaring 

19  that  the  petitioner  requests  an  adjustment  of  the  rate.  The  Register 

20  shall  make  a  determination  as  to  whether  the  applicant  has  a  signifi- 

21  cant  interest  in  the  royalty  rate  in  which  an  adjustment  is  requested. 

22  If  the  Register  determines  that  the  petitioner  has  a  significant  interest, 

23  he  shall  cause  notice  of  his  decision  to  be  published  in  the  Federal 

24  Register. 

25  §  803.  Membership  of  the  Tribunal 

26  (a)  In  accordance  with  Section  802,  or  upon  certifying  the  existence 

27  of  a  controversy  concerning  the  distribution  of  royalty  fees  deposited 

28  pursuant  to  sections  111  and  116.  the  Register  shall  request  the  Amer- 

29  loan  Arbitration  Association  or  any  similar  successor  organization  to 

30  furnish  a  list  of  three  members  of  said  Association.  The  Register  shall 

31  commmiicate  the  names  together  witli  such  information  as  may  be 

32  appropriate  to  all  parties  of  interest.  And  such  party  witliin  twenty 

33  days  from  the  date  said  communication  is  sent  may  submit  to  the  Regis- 

34  ter  written  objections  to  any  or  all  of  the  proposed  names.  If  no  such 

35  objections  are  leceived.  oi-  if  tlie  Registei'  determines  that  said  objec- 

36  tions  are  not  well  founded,  he  shall  certify  the  appointment  of  the  three 

37  designated  individuals  to  constitute  a  panel  of  the  Tribunal  for  the 

38  consideration  of  the  specified  rate  or  royalty  distribution.  Such  panel 

39  shall  function  as  the  Tribunal  established  in  section  801.  If  the  Register 

40  determines  that  the  objections  to  the  designation  of  one  or  more  of  the 


62 


60 


1  proposed  individuals  are  well  founded,  the  Register  shall  request  the 

2  American  Arbitration  Association  or  any  similar  successor  organiza- 

3  tion  to  propose  the  necessary  number  of  substitute  individuals.  Upon 

4  receiving  such  additional  names  the  Register  shall  constitute  the  panel. 

5  The  Register  shall  designate  one  member  of  the  panel  as  Chairman. 

6  (b)  If  any  member  of  a  panel  becomes  unable  to  perform  his  duties, 

7  the  Register,  after  consultation  with  the  parties,  may  provide  for  the 

8  selection  of  a  successor  in  the  manner  prescribed  in  subsection  (a). 

9  §  804.  Procedures  of  the  Tribunal 

10  (a)  The  Tribunal  shall  fix  a  time  and  place  for  its  proceedings  and 

11  shall  cause  notice  to  be  given  to  the  parties. 

12  (b)   Any  organization  or  person  entitled  to  participate  in  the  pro- 

13  ceedings  may  appear  directly  or  be  represented  by  counsel. 

14  (c)  Except  as  otherwise  provided  by  law,  the  Tribunal  shall  deter- 

15  mine  its  own  procedure.  For  the  purpose  of  carrying  out  the  provisions 

16  of  this  chapter,  the  Tribunal  may  hold  hearings,  administer  oaths, 

17  and  require,  by  subpoena  or  otherwise,  the  attendance  and  testimony 

18  of  witnesses  and  the  production  of  documents. 

19  (d)   Every  final  decision  of  the  Tribunal  shall  be  in  writing  and 

20  shall  state  the  reasons  therefor. 

21  (e)  The  Tribunal  shall  render  a  final  decision  in  each  proceeding 

22  within  one  year  from  the  certification  of  the  panel.  Upon  a  showing 

23  of  good  cause,  the  Senate  Committee  on  the  Judiciary  and  the  House  of 

24  Representatives  Committee  on  the  Judiciary  may  waive  this  require- 

25  ment  in  a  particular  proceeding. 

26  §  805.  Compensation  of  members  of  the  Tribunal ;  expenses  of  the 

27  Tribunal 

28  (a)  In  j^roceedings  for  the  distribution  of  royalty  fees,  the  compen- 

29  sation  of  members  of  the  Tribunal  and  other  expenses  of  the  Tribunal 

30  shall  be  deducted  prior  to  the  distribution  of  the  funds. 

31  (b)   In  proceedings  for  the  adjustment  of  royalty  rates,  there  is 

32  hereby  authorized  to  be  appropriated  such  sums  as  may  be  necessary. 

33  (c)   The  Library  of  Congress  is  authorized  to  fuinish  facilities  and 

34  incidental  service  to  the  Tribunal. 

35  (d)  The  Tribunal  is  authorized  to  procure  temporary  and  inter- 

36  mittent  services  to  the  same  extent  as  is  authorized  by  section  3109  of 

37  title  5,  United  States  Code. 

38  §  806.  Reports  to  the  Congress 

39  The  Tribunal  immediately  upon  making  a  final  determination  in 

40  any  proceeding  for  adjustment  of  a  statutory  royalty  shall  transmit 


63 


61 


1  its  decision,  together  with  the  reasons  therefor,  to  the  Secretary  of  the 

2  Senate  and  the  Clerk  of  the  House  of  Representatives  for  reference 

3  to    the    Judiciary    Committees    of   the    Senate    and    the    House    of 

4  Representatives. 

5  §  807.  Effective  date  of  royalty  adjustment 

6  (a)  Prior  to  the  expiration  of  the  first  period  of  ninety  calendar 

7  days  of  continuous  session  of  the  Congress,  following  the  transmittal 

8  of  the  report  specified  in  section  806,  either  House  of  the  Congress  may 

9  adoiJt  a  resolution  stating  in  substance  that  the  House  does  not  favor 

10  the  recommended  royalty  adjustment,  and  such  adjustment,  therefore, 

11  shall  not  become  effective. 

12  (b)  For  the  purposes  of  subsection  (a)  of  this  section 

13  ( 1 )  Continuity  of  session  shall  be  considered  as  broken  only  by 

14  an  adjournment  of  the  Congress  sine  die,  and 

15  (2)  In  the  computation  of  the  ninety-day  period  there  shall  be 

16  excluded  the  days  on  which  either  House  is  not  in  session  because 

17  of  an  adjournment  of  more  than  three  days  to  a  day  certain. 

18  (c)   In  the  absence  of  the  passage  of  such  a  resolution  by  either 

19  House  during  said  ninety-day  period,  the  final  determination  by  the 

20  Tribunal  of  a  petition  for  adjustment  shall  take  effect  on  the  first  day 

21  f ollow  ing  ninety  calendar  days  after  the  expiration  of  the  period  speci- 

22  fied  by  subsection  (a). 

23  (d)  The  Register  of  Copyrights  shall  give  notice  of  such  effective 

24  date  by  publication  in  the  Federal  Register  not  less  than  sixty  days 

25  before  said  date. 

26  §  808.  Effective  date  of  royalty  distribution 

27  A  final  determination  of  the  Tribunal  concerning  the  distribution 

28  of  royalty  fees  deposited  with  the  Register  of  Copyrights  pursuant  to 

29  sections  111  and  116  shall  become  effective  thirty  days  following  such 

30  determination  unless  prior  to  that  time  an  application  has  been  filed 

31  pursuant  to  section  809  to  vacate,  modify  or  correct  the  determination, 

32  and  notice  of  such  application  has  been  served  upon  the  Register  of 

33  Copyrights.  The  Register  upon  the  expiration  of  thirty  days  shall  dis- 

34  tribute  such  I'oyalty  fees  not  subject  to  any  apjjlication  filed  pui-suant 

35  to  section  809. 

36  §  809.  Judicial  review 

37  In  any  of  the  following  cases  tlie  T'nited  States  District  Court  for 

38  the  Distrirt  of  Columbia  may  make  an  order  vacating,  modifying  or 

39  correcting  a  final  determination  of  the  Tribunal  concerning  the  distri- 

40  Ijution  of  royalty  fees — 


64 


62 

1  (a)  Where  the  determination  was  procured  by  corruption,  fraud, 

2  or  undue  means. 

3  (b)  Where  there  was  evident  partiality  or  corruption  in  any  mem- 

4  her  of  the  panel. 

5  (c)  Where  any  member  of  the  panel  was  guilty  of  any  misconduct 

6  by  which  the  rights  of  any  party  have  been  prejudiced. 

7  TRANSITIONAL    AND    STTPPLEMENTARY    PROVISIONS 

8  Sec.  102.  This  title  becomes  effective  on  January  1.  1977.  except  as 

9  otherwise  provided  by  section  304(b)  of  title  17  as  amended  by  this 

10  title. 

11  Sec.  103.  This  title  does  not  provide  copyright  protection  for  any 

12  work  that  goes  into  the  public  domain  before  January  1,  1977.  The 

13  exclusive  rights,  as  provided  by  section  106  of  title  17  as  amended 

14  by  this  title,  to  reproduce  a  work  in  phonorecords  and  to  distribute 

15  phonorecords  of  the  work,  do  not  extend  to  any  nondramatic  musical 

16  work  copyrighted  before  July  1, 1909. 

17  Sec.  104.  All  proclamations  issued  by  the  President  under  sections 

18  1(e)  or  9(b)  of  title  17  as  it  existed  on  December  31,  1976,  or  under 

19  previous  copyright  statutes  of  the  United  States  shall  continue  in 

20  force  until  terminated,  suspended,  or  revised  by  the  President. 

21  Sec.  105.  (a)  (1)  Section  505  of  title  44,  United  States  Code,  Sup- 

22  plement  IV,  is  amended  to  read  as  follows : 

23  '*§  505.  Sale  of  duplicate  plates 

24  "The  Public  Printer  shall  sell,  under  regulations  of  the  Joint  Com- 

25  mittee  on  Printing  to  persons  who  may  apply,  additional  or  duplicate 

26  stereotype  or  electrotype  plates  from  which  a  Government  publication 

27  is  printed,  at  a  price  not  to  exceed  the  cost  of  composition,  the  metal, 

28  and  making  to  the  Government,  plus  10  per  centum,  and  tlie  full 

29  amount  of  the  price  shall  be  paid  when  the  order  is  filed." 

30  (2)  The  item  relating  to  section  505  in  the  sectional  analysis  at  the 

31  beginning  of  chapter  5  of  title  44,  United  States  Code,  is  amended  to 

32  read  as  follows : 

"505.  Sale  of  duplicate  plates." 

33  (b)  Section  2113  of  title  44,  United  States  Code,  is  amended  to  read 

34  as  follows : 

35  "§  2113.  Limitation  on  liability 

36  "Wlien   letters   and   other  intellectual   productions    (exclusive   of 

37  patented  material,  published  works  under  copyright  protection,  and 

38  unpublished  works  for  which  copyright  registration  has  been  made) 

39  come  into  the  custody  or  possession  of  the  Administrator  of  General 


65 


63 


1  Services,  the  United  States  or  its  agents  are  not  liable  for  infringe- 

2  ment  of  copyright  or  analogous  rights  arising  out  of  use  of  the  mate- 

3  rials  for  display,  inspection,  research,  reproduction,  or  other  purposes." 

4  (c)  In  section  1498(b)  of  title  28  of  the  United  States  Code,  the 

5  phrase  "section  101(b)  of  title  17"  is  amended  to  read  "section  504(c) 

6  of  title  17". 

7  (d)   Section  543(a)  (4)  of  the  Internal  Revenue  Code  of  1954,  as 

8  amended,  is  amended  by  striking  out  "(other  than  by  reason  of  sec- 

9  tion2or6thereof)". 

10  (e)    Section  3202(a)    of  title  39   of  the  United   States   Code  is 

11  amended  by  striking  out  clause  (5).  Section  3206(c)  of  title  39  of  the 

12  United  States  Code  is  amended  by  striking  out  clause  (c).  Section 

13  3206(d)  is  renumbered  (c). 

14  (f)    In  section  6  of  the  Standard  Reference   Data  Act    (section 

15  290(e)  of  title  15  of  the  United  States  Code,  Supplement  IV).  sub- 

16  section  (a)  is  amended  to  delete  the  reference  to  "section  8"  and  to 

17  substitute  therefor  the  phrase  "section  105". 

18  Sec.  106.  In  any  case  where,  before  January  1,  1977,  a  person  has 

19  lawfully  made  parts  of  instruments  serving  to  reproduce  mechani- 

20  cally  a  copyrighted  work  under  the  compulsory  license  provisions  of 

21  section  1(e)   of  title  17  as  it  existed  on  December  31.  1976,  he  may 

22  continue  to  make  and  distribute  such  parts  embodying  the  same  me- 

23  chanical  reproduction  without  obtaining  a  new  compulsory  license 

24  under  the  terms  of  section  115  of  title  17  as  amended  by  this  title. 

25  However,  such  parts  made  on  or  after  January  1,  1977,  constitute 

26  phonorecords  and  are  otherwise  subject  to  the   provisions  of  said 

27  section  115. 

28  Sec.  107.  In  the  case  of  any  work  in  which  an  ad  interim  copyright 

29  is  subsisting  or  is  capable  of  being  secured  on  December  31,  1976, 

30  under  section  22  of  title  17  as  it  existed  on  that  date,  copyright  pro- 

31  tection  is  hereby  extended  to  endure  for  the  term  or  terms  provided 

32  by  section  304  of  title  17  as  amended  by  this  title. 

33  Sec.  108.  The  notice  provisions  of  sections  401  through  403  of  title 

34  17  as  amended  by  this  title  apply  to  all  copies  or  phonorecords  publicly 

35  distributed  on  or  after  January  1,  1977.  However,  in  the  case  of  a  work 

36  published  before  January  1,  1977,  compliance  with  the  notice  provi- 

37  sions  of  title  17  either  as  it  existed  on  December  31,  1976,  or  as  amended 

38  by  this  title,  is  adequate  witli  respect  to  copies  publicly  distributed 

39  after  December  31.  1976. 


66 


64 

1  Sec.  109.  The  registration  of  claims  to  copyright  for  which  the 

2  required  deposit,  application,  and  fee  were  received  in  the  Copyright 

3  Office  before  January  1,  1977,  and  the  recordation  of  assignments  of 

4  copyright  or  other  instruments  received  in  the  Copyright  Office  before 

5  January  1,  1977,  shall  be  made  in  accordance  with  title  17  as  it  existed 

6  on  December  31,  1976. 

7  Sec.  110.  The  demand  and  penalty  provisions  of  section  14  of  title  17 

8  as  it  existed  on  December  31,  1976,  apply  to  any  work  in  which  copy- 

9  right  has  been  secured  by  publication  with  notice  of  copyright  on  or 

10  before  that  date,  but  any  deposit  and  registration  made  after  that  date 

11  in  response  to  a  demand  under  that  section  shall  be  made  in  accordance 

12  with  the  provisions  of  title  17  as  amended  by  this  title. 

13  Sec.  111.  Section  2318  of  title  18  of  the  United  States  Code  is 

14  amended  to  read  as  follows : 

15  "§2318.  Transportation,  sale  or  receipt  of  phonograph  records 

16  bearing  forged  or  counterfeit  labels 

17  "Whoever  knowingly  and  with  fraudulent  intent  transports,  causes 

18  to  be  transported,  receives,  sells,  or  offers  for  sale  in  interstate  or 

19  foreign  commerce  any  phonograph  record,  disk,  wire,  tape,  film,  or 

20  other  article  on  which  sounds  are  recorded,  to  which  or  upon  which  is 

21  stamped,  pasted,  or  affixed  any  forged  or  counterfeited  label,  knowing 

22  the  label  to  have  been  falsely  made,  forged,  or  counterfeited  shall  be 

23  fined  not  more  than  $25,000  or  imprisoned  for  not  more  than  one 

24  year,  or  both,  for  the  first  such  offense  and  shall  be  fined  not  more  than 

25  $50,000  or  imprisoned  not  more  than  two  years  or  both,  for  any  sub- 

26  sequent  offense." 

27  Sec.  112.  All  causes  of  action  that  arose  under  title  17  before  Jan- 

28  nary  1,  1977,  sliall  be  governed  by  title  17  as  it  existed  when  the  cause 

29  of  action  arose. 

30  Sec.  113.  If  any  provision  of  title  17,  as  amended  by  this  title,  is 

31  declared  unconstitutional,  the  validity  of  the  remainder  of  the  title 

32  is  not  affected. 

33  TITLE  II— PROTECTION  OF  ORNAMENTAL  DESIGNS 

34  OF  USEFUL  ARTICLES 

35  DESIGNS    PROTECTED 

36  Sec.  201.  (a)  The  author  or  other  proprietor  of  an  original  orna- 

37  mental  design  of  a  useful  article  may  secure  the  protection  provided 

38  by  this  title  upon  complying  with  and  subject  to  the  provisions  hereof. 

39  (b)   For  tlie  purposes  of  this  title — 

40  (1)   J^  "useful  article"  is  an  article  which  in  normal  use  has  an 

41  intrinsic  utilitarian  function  that  is  not  merely  to  portray  the  appear- 


67 


65 

1  ance  of  the  article  or  to  convey  information.  An  article  which  normally 

2  is  a  part  of  a  useful  artick  shall  be  deemed  to  be  a  useful  article. 

3  (2)   The  "design  of  a  useful  article",  hereinafter  referred  to  as  a 

4  "design"',  consists  of  those  aspects  or  elements  of  the  article,  including 

5  its  two-dimensional  or  three-dimensional  features  of  shape  and  sur- 

6  face,  which  make  up  the  appearance  of  the  article. 

7  (3)   A  design  is  "ornamental"  if  it  is  intended  to  make  the  article 

8  attractive  or  distinct  in  appearance. 

9  (4)   A  design  is  "original"  if  it  is  the  independent  creation  of  an 

10  author  who  did  not  copy  it  from  another  source. 

11  DESIGNS    NOT  SUBJECT  TO  PROTECTION 

12  Sec.  202.  Protection  under  this  title  shall  not  be  available  for  a 

13  design  that  is — 

14  (a)  not  original; 

15  (b)  staple  or  commonplace,  such  as  a  standard  geometric  figure, 

16  familiar  symbol,  emblem,  or  motif,  or  other  shape,  pattern,  or  con- 

17  figuration  which  has  become  common,  prevalent,  or  ordinary ; 

18  (c)  ditferent  from  a  design  excluded  by  subparagraph  (b)  above 

19  only  in  insignificant  details  or  in  elements  which  are  variants  com- 

20  monly  used  in  the  relevant  trades ;  or 

21  (d)  dictated  solely  by  a  utilitarian  function  of  the  article  that 

22  embodies  it ; 

23  (e)   composed  of  three-dimensional  features  of  shape  and  sur- 

24  face  with  respect  to  men's,  women's,  and  children's  apparel,  in- 

25  eluding  undergarments  and  outerwear. 

26  revisions,    ADAPTATIONS,    AND    REARRANGEMENTS 

27  Sec.  208.  Protection  for  a  design  under  this  title  shall  be  available 

28  notwithstanding  the  employment  in  the  design  of  subject  matter  ex- 

29  eluded  from  protection  under  section  202,  if  the  design  is  a  substantial 

30  revision,  adaptation,  or  rearrangement  of  said  subject  matter:  Pro- 

31  vided.  That  such  protection  shall  be  available  to  a  design  employing 

32  subject  matter  protected  under  title  I  of  this  Act,  or  title  35  of  the 

33  United  States  Code  or  this  title,  only  if  such  protected  subject  matt«r  is 

34  employed  with  the  consent  of  the  proprietor  thereof.  Such  protection 

35  shall  be  independent  of  any  subsisting  protection  in  subject  matter 

36  employed  in  the  design,  and  shall  not  be  construed  as  securing  any 

37  right  to  subject  matter  excluded  from  protection  or  as  extending  any 

38  subsisting  protection. 

39  commencement  of  protection 

40  Sec.  204.  (a)  The  protection  provided  for  a  design  under  this  title 

41  shall  commence  upon  the  date  when  the  design  is  first  made  public. 


68 


1  (b)  A  design  is  made  public  when,  by  the  proprietor  of  the  design 

2  or  with  his  consent,  an  existing  useful  article  embodying  the  design 

3  is  anywhere  publicly  exhibited,  publicly  distributed,  or  offered  for 

4  sale  or  sold  to  the  public. 

5  TERM    OF    PROTECnOX 

6  Sec.  205.  (a)  Subject  to  the  provisions  of  this  title,  the  protection 

7  herein  provided  for  a  design  shall  continue  for  a  term  of  five  years 

8  from  the  date  of  the  commencement  of  protection  as  provided  in  sec- 

9  tion  204:(a).  but  if  a  proper  application  for  renewal  is  received  by 

10  the  Administrator  during  the  year  prior  to  the  expiration  of  the  five- 

11  year  term,  the  protection  herein  provided  shall  be  extended  for  an 

12  additional  period  of  five  years  from  the  date  of  expiration  of  the  first 

13  five  years. 

14  (b)  If  the  design  notice  actually  applied  shows  a  date  earlier  than 

15  the  date  of  the  commencement  of  protection  as  provided  in  section 

16  L'U4:(a).  protection  shall  teiminate  as  though  the  term  had  commenced 

17  at  the  earlier  date. 

18  (c)  Where  the  distinguishing  elements  of  a  design  are  in  substan- 

19  tially  the  same  form  in  a  number  of  different  useful  articles,  the 

20  design  shall  be  protected  as  to  all  such  articles  when  protected  as 

21  to  one  of  them,  but  not  more  than  one  registration  shall  be  required, 
as  provided  in  this  title  all  rights  under  this  title  in  said  design  shall 
Upon  expiration  or  termination  of  protection  in  a  particular  design 

24  terminate,  regardless  of  the  number  of  different  articles  in  which  thft 

25  design  may  have  been  utilized  during  the  term  of  its  protection. 

26  THE   DESIGN    NOTICE 

27  Sec.  206.  (a)  Whenever  any  design  for  which  protection  is  sought 

28  under  this  title  is  made  public  as  provided  in  section  204(b),  the 

29  proprietor  shall,  subject  to  the  provisions  of  section  207.  mark  it  or 

30  have  it  marked  legibly  with  a  design  notice  consisting  of  the  following 

31  three  elements : 

32  (1)   the  words  "Protected  Design",  the  abbreviation  "Prot'd 

33  Des."  or  the  letter  "D"  within  a  circle  thus  @ ; 

34  (2)  the  year  of  the  date  on  which  the  design  was  first  made 

35  public ;  and 

36  (3)  the  name  of  the  proprietor,  an  abbreviation  by  which  the 

37  name  can  be  recognized,  or  a  generally  accepted  alternative  desig- 

38  nation  of  the  proprietor;   any  distinctive  identification  of  the 
proprietor  may  be  used  if  it  has  been  approved  and  recorded  by 


22 
23 


39 


69 


67 

1  the  Administrator  before  the  design  marked  with  such  identifica- 

2  t  ion  is  made  public. 

3  After  registration  the  registration  number  may  be  used  instead  of 

4  the  elements  specified  in  (2)  and  (3)  hereof. 

5  (b)  The  notice  shall  be  so  located  and  applied  as  to  give  reasonable 

6  notice  of  design  protection  while  the  useful  article  embodying  the 

7  design  is  passing  through  its  normal  channels  of  commerce.  This  re- 

8  quirement  may  be  fulfilled,  in  the  case  of  sheetlike  or  strip  materials 

9  bearing  repetitive  or  continuous  designs,  by  application  of  the  notice 
10  to  each  repetition,  or  to  the  margin,  selvage,  or  reverse  side  of  the  ma- 
ll terial  at  reasonably  frequent  intervals,  or  to  tags  or  labels  affixed  to 

12  the  material  at  such  intervals. 

13  (c)  '\\nien  the  proprietor  of  a  design  has  complied  with  the  provi- 

14  sions  of  this  section,  protection  under  this  title  shall  not  be  affected 

15  by  the  removal,  destruction,  or  obliteration  by  others  of  the  design 

16  notice  on  an  article. 

lY  EFFECT    OF    OMISSION    OF    NOTICE 

18  Sec.  ^OT.  The  omission  of  the  notice  prescribed  in  section  206  shall 

19  not  cause  loss  of  the  protection  or  prevent  recovery  for  infringement 

20  against  any  person  who,  after  written  notice  of  the  design  protection, 

21  begins  an  undertaking  leading  to  infringement:  Provided,  That  such 

22  omission  shall  prevent  any  recovery  imder  section  222  against  a  person 

23  who  began  an  undertaking  leading  to  infringement  before  receiving 

24  written  notice  of  the  design  protection,  and  no  injunction  shall  be 

25  had  unless  the  pi-oprietor  of  the  design  shall  reimburse  said  person 

26  for  any  reasonable  expenditure  or  contractual  obligation  in  connection 

27  with  such  undertaking  incurred  before  written  notice  of  design  protec- 

28  tion,  as  the  court  in  its  discretion  shall  direct.  The  burden  of  proving 

29  written  notice  shall  be  on  the  proprietor. 

30  INFRINGEMENT 

31  Sec.  208.  (a)  It  shall  be  infringement  of  a  design  protected  under 

32  this  title  for  any  person,  without  the  consent  of  the  proprietor  of 

33  the  design,  within  the  United  States  or  its  territories  or  possessions 

34  and  during  the  term  of  such  protection,  to — 

35  (1)  make,  have  made,  or  import,  for  sale  or  for  use  in  trade, 

36  any  infringing  article  as  defined  in  subsection   (d)   hereof;  or 

37  (2)   sell  or  distribute  for  sale  or  for  use  in  trade  any  such 

38  infringing  article :  Provided,  however,  That  a  seller  or  distributor 

39  of  any  such  article  who  did  not  make  or  import  the  same  shall  be 

40  deemed  to  be  an  infringer  only  if — 


70 


68 

1  (i)  he  induced  or  acted  in  collusion  with  a  manufacturer  to 

2  make,  or  an  importer  to  import  such  article  (merely  purchas- 

3  ing  or  giving  an  order  to  purchase  in  the  ordinary  course  of 

4  business  shall  not  of  itself  constitute  such  inducement  or 

5  collusion)  ;  or 

6  (ii)  he  refuses  or  fails  upon  the  request  of  the  proprietor 

7  of  the  design  to  make  a  prompt  and  full  disclosure  of  his 

8  source  of  such  article,  and  he  ordei-s  or  reordei-s  such  article 

9  after  having  received  notice  by  registered  or  certified  mail 

10  of  the  protection  subsisting  in  the  design. 

11  (b)  It  shall  be  not  infringement  to  make,  have  made,  import,  sell, 

12  or  distribute,  any  article  embodying  a  design  created  without  knowl- 

13  edge  of,  and  copying  from,  a  protected  design. 

14  (c)  A  person  who  incorporates  into  his  own  product  of  manufacture 

15  an  infringing  article  acquired  from  others  in  the  ordinary  course  of 

16  business,  or  who,  without  knowledge  of  the  protected  design,  makes  or 

17  processes  an,  infringing  article  for  the  account  of  another  person  in  the 

18  ordinary  course  of  business,  shall  not  be  deemed  an  infringer  except 

19  under  the  conditions  of  clauses  (i)  and  (ii)  of  paragraph  (a)  (2)  of 

20  this  section.  Accepting  an  order  or  reorder  from  the  source  of  the  in- 

21  fringing  article  shall  be  deemed  ordering  or  reordering  within  the 

22  meaning  of  clause  (ii)  of  paragraph  (a)  (2)  of  this  section. 

23  (d)  An  "infringing  article"  as  used  herein  is  any  article,  the  design 
24r  of  which  has  been  copied  from  the  protected  design,  without  the  con- 

25  sent  of  the  proprietor:  Provided,  however,  That  an  illustration  or 

26  picture  of  a  protected  design  in  an  advertisement,  book,  periodical, 

27  newspaper,  photograph,  broadcast,  motion  picture,  or  similar  medium 

28  shall  not  be  deemed  to  be  an  infringing  article.  An  article  is  not  an 

29  infringing  article  if  it  embodies,  in  common  with  the  protected  design, 

30  only  elements  described  in  subsections  (a)  through  (d)  of  section  202. 

31  (e)  The  party  alleging  rights  in  a  design  in  any  action  or  proceed- 

32  ing  shall  have  the  burden  of  affirmatively  establishing  its  originality 

33  whenever  the  opposing  party  introduces  an  earlier  work  which  is 

34  identical  to  such  design,  or  so  similar  as  to  make  a  prima  facie  show- 

35  ing  that  such  design  was  copied  from  such  work. 

36  APPLICATION   FOK   REGISTRATION 

37  Sec.  209.  (a)  Protection  under  this  title  shall  be  lost  if  application 

38  for  registration  of  the  design  is  not  made  within  six  months  after  the 

39  date  on  which  the  design  was  first  made  public  as  provided  in  section 

40  304(b). 


71 


69 

1  (b)  Application  for  registration  or  renewal  may  be  made  by  the 

2  proprietor  of  the  design. 

3  (c)  The  application  for  registration  shall  be  made  to  the  Adminis- 

4  trator  and  shall  state   (1)   the  name  and  address  of  the  author  or 

5  authors  of  the  design;   (2)  the  name  and  address  of  the  proprietor 

6  if  different  from  the  author;  (3)  the  specific  name  of  the  article,  in- 

7  dicating  its  utility ;  (4)  the  date  when  the  design  was  first  made  public 

8  MS  provided  in  section  204(b)  ;  and  (5)  such  other  information  as  may 

9  be  required  by  the  Administrator.  The  application  for  registration 
10  may  include  a  description  setting  forth  the  salient  features  of  the  de- 
ll sign,  but  the  absence  of  such  a  description  shall  not  prevent  registra- 

12  tion  under  this  title. 

13  (d)   The  application  for  registration  shall  be  accompanied  by  a 

14  statement  under  oath  by  the  applicant  or  his  duly  authorized  agent  or 

15  representative,  setting  forth  that,  to  the  best  of  his  knowledge  and  be- 

16  lief  ( 1 )  the  design  is  original  and  was  created  by  the  author  or  authors 

17  named  in  the  application ;  (2)  the  design  has  not  previously  been  regis- 

18  tered  on  behalf  of  the  applicant  or  his  predecessor  in  title;  (3)  the  de- 

19  sign  has  been  made  public  as  provided  in  section  204(b)  ;  and  (4)  the 

20  applicant  is  the  person  entitled  to  protection  and  to  registration  under 

21  this  title.  If  the  design  has  been  made  public  with  the  design  notice 

22  prescribed  in  section  206,  the  statement  shall  also  describe  the  exact 

23  form  and  position  of  the  design  notice. 

24  (e)  Error  in  any  statement  or  assertion  as  to  the  utility  of  the  article 

25  named  in  the  application,  the  design  of  which  is  sought  to  be  regis- 

26  tered,  shall  not  affect  the  protection  secured  under  this  title. 

27  (f )  Errors  in  omitting  a  joint  author  or  in  naming  an  alleged  joint 

28  author  shall  not  affect  the  validity  of  the  registration,  or  the  actual 

29  ownership  or  the  protection  of  the  design :  Provided^  That  the  name  of 

30  one  individual  who  was  in  fact  an  author  is  stated  in  the  application. 

31  Where  the  design  was  made  within  the  regular  scope  of  the  author's 

32  employment  and  individual  authorship  of  the  design  is  difficult  or  im- 

33  iK>ssible  to  ascribe  and  the  application  so  states,  the  name  and  address 

34  of  the  employer  for  whom  the  design  was  made  may  be  stated  instead 

35  of  that  of  the  individual  author. 

36  (g)  The  application  for  registration  shall  be  accompanied  by  two 

37  copies  of  a  drawing  or  other  pictorial  representation  of  the  useful 

38  article  having  one  or  more  views,  adequate  to  show  the  design,  in  a 

39  form  and  style  suitable  for  reproduction,  which  shall  be  deemed  a 

40  part  of  the  application. 


72 


70 

1  (h)  Related  useful  articles  having  common  design  features  may  be 

2  included  in  the  same  application  under  such  conditions  as  may  be  pre- 

3  scribed  by  the  Administrator. 

4  BENEFIT    OF    EARLIER   FILING    DATE    IN    FOREIGN    COUNTRY 

5  Sec.  210.  An  application  for  registiation  of  a  design  filed  in  this 

6  country  by  any  person  who  has,  or  whose  legal  representative  or  pred- 

7  ecessor  or  successor  in  title  has  previously  regularly  filed  an  applica- 

8  tion  for  registration  of  the  same  design  in  a  foreign  country  which  af- 

9  fords  similar  privileges  in  the  case  of  applications  filed  in  the  United 

10  States  or  to  citizens  of  tlie  United  States  shall  have  the  same  effect 

11  as  if  filed  in  this  country  on  the  date  on  which  the  application  was 

12  fii-st  filed  in  any  such  foreign  country,  if  the  application  in  this  country 

13  is  filed  within  six  months  from  the  earliest  date  on  which  any  such 

14  foreign  application  was  filed. 

15  OATHS   AND   ACKNOWLEDGMENTS 

16  Sec.  211.  Oaths  and  acknowledgments  required  by  this  title  may  be 

17  made  before  any  person  in  the  United  States  authorized  by  law  to 

18  administer  oaths,  or,  when  made  in  a  foreign  country,  before  any 

19  diplomatic  or  consular  officer  of  the  United  States  authorized  to  ad- 

20  minister  oaths,  or  before  any  official  authorized  to  administer  oaths  in 

21  the  foreign  country  concerned,  whose  authority  shall  be  proved  by  a 

22  certificate  of  a  diplomatic  or  consular  officer  of  the  United  States,  and 

23  shall  be  valid  if  they  comply  with  the  laws  of  the  state  or  country 

24  where  made. 

25  EXAMINATION   OF   APPLICATION   AND  ISSUE  OR  REBTJSAL   OF  REGISTRATION 

26  Sec.  212.  (a)  Upon  the  filing  of  an  application  for  registration  in 

27  proper  form  as  provided  in  section  209,  and  upon  payment  of  the  fee 

28  provided  in  section  215,  the  Administrator  shall  determine  whether 

29  or  not  the  application  relates  to  a  design  which  on  its  face  appears  to 

30  be  subject  to  protection  under  this  title,  and  if  so,  he  shall  register  the 

31  design.   Registration  under  this  subsection  shall  be  announced  by 

32  publication. 

33  (b)  If,  in  his  judgment,  the  application  for  registration  relates  to 

34  a  design  which  on  its  face  is  not  subject  to  protection  under  this  title, 

35  the  Administrator  shall  send  the  applicant  a  notice  of  his  refusal  to 

36  register  and  the  grounds  therefor.  Within  three  months  from  the  date 

37  the  notice  of  refusal  is  sent,  the  applicant  may  request,  in  writing,  re- 

38  consideration  of  his  application.  After  consideration  of  such  a  request, 

39  the  Administrator  shall  either  register  the  design  or  send  the  applicant 

40  a  notice  of  his  final  refusal  to  register. 


73 


71 

1  (c)  Any  person  who  believes  he  is  or  will  be  damaged  by  a  registra- 

2  tion  under  this  title  may,  upon  payment  of  the  prescribed  fee,  apply 

3  to  the  Administrator  at  any  time  to  cancel  the  registration  on  the 

4  ground  that  the  design  is  not  subject  to  protection  under  the  provisions 

5  of  this  title,  stating  the  reasons  therefor.  Upon  receipt  of  an  applica- 

6  tion  for  cancellation,  the  Administrator  shall  send  the  proprietor  of 

7  the  design,  as  shown  in  the  records  of  the  Office  of  the  Administrator,  a 

8  notice  of  said  application,  and  the  pix>prietor  shall  have  a  period  of 

9  three  months  from  the  date  such  notice  was  mailed  in  which  to  present 

10  arguments  in  support  of  the  validity  of  the  registration.  It  shall  also 

11  be  within  the  authority  of  the  Administrator  to  establish,  by  regula- 

12  tion,  conditions  under  which  the  opposing  parties  may  appear  and  be 

13  heard  in  support  of  their  arguments.  If,  after  the  periods  provided  for 

14  the  presentation  of  arguments  have  expired,  the  Administrator  deter- 

15  mines  that  the  ai^plicant  for  cancellation  has  established  that  the  de- 

16  sign  is  not  subject  to  protection  under  the  provisions  of  this  title,  he 

17  shall  order  the  registration  stricken  from  the  record.  Cancellation 

18  under  this  subsection  shall  be  announced  by  publication,  and  notice  of 

19  the  Administrator's  final  determination  with  respect  to  any  application 

20  for  cancellation  shall  be  sent  to  the  applicant  and  to  the  proprietor 

21  of  record. 

22  (d)  Remedy  against  a  final  adverse  determination  under  subpara- 

23  graphs   (b)   and   (c)   above  may  be  had  by  means  of  a  civil  action 

24  against  the  Administrator  pursuant  to  the  provision  of  section  1361  of 

25  title  28,  United  States  Code,  if  commenced  within  such  time  after  such 

26  decision,  not  less  than  60  days,  as  the  Administrator  appoints. 

27  (e)  When  a  design  has  been  registered  under  this  section,  the  lack 

28  of  utility  of  any  article  in  which  it  has  been  embodied  shall  be  no 

29  defense  to  an  infringement  action  under  section  220,  and  no  ground 

30  for  cancellation  under  subsection   (c)   of  this  section  or  under  sec- 

31  tion  223. 

32  CERTIFICATION    OF    REGISTILVHOX 

33  Sec.  213.  Certificates  of  registration  shall  be  issued  in  the  name  of 

34  the  United  States  under  the  seal  of  the  Office  of  the  Administrator  and 

35  shall  be  recorded  in  the  official  records  of  that  Office   The  certificate 

36  shall  state  the  name  of  the  useful  article,  the  date  of  filing  of  the  appli- 

37  cation,  the  date  on  which  the  design  was  first  made  public  as  pro\ided 
in  section  204(b)  or  any  earlier  date  as  set  forth  in  section  205(b),  and 
shall  contain  a  reproduction  of  the  drawing  or  other  pictorial  repre- 


38 
39 


40      sentation  showing  the  design.  Where  a  description  of  the  salient  fea- 


57-786   O  -  76  -  pt.  1 


74 


72 

1  tures  of  the  desifrr^  appears  in  the  application,  this  description  shall 

2  also  appear  in  the  certificate.  A  renewal  certificate  sliall  contain  the 

3  date  of  renewal  registration  in  addition  to  the  foi-egoing.  A  certificate 

4  of  initial  or  renewal  registration  shall  be  admitted  in  any  court  as 

5  prima  facie  evidence  of  the  facts  stated  therein. 

6  PUBLICATION    OF    ANNOUNCEMENTS    AND    INDEXES 

7  Sec.  214.  (a)  The  Administrator  shall  publish  lists  and  indexes  of 

8  registered  designs  and  cancellations  thereof  and  may  also  publish  the 

9  drawing  or  other  pictorial  representations  of  registered  designs  for 

10  sale  or  other  distribution. 

11  (b)   The  Administrator  shall  establish  and  maintain  a  file  of  the 

12  drawings   or  other  pictorial   representations  of  registered  designs, 

13  which  file  shall  be  available  for  use  by  the  public  under  such  condi- 
14;  tions  as  the  Administrator  may  prescribe. 

15  FEES 

16  Sec.  215.  (a)  There  shall  be  paid  to  the  Administrator  the  follow- 

17  ing  fees : 

18  (1)   On  filing  each  application  for  registration  or  for  renewal  of 

19  registration  of  a  design,  $15. 

20  (2)  For  each  additional  related  article  included  in  one  application, 

21  $10. 

22  (3)   For  recording  assignment,  $3  for  the  first  six  pages,  and  for 

23  each  additional  two  pages  or  less,  $1. 

24  (4)   For  a  certificate  of  correction  of  an  error  not  the  fault  of  the 

25  Office,  $10. 

26  ( 5 )   For  certification  of  copies  or  records,  $1 . 

27  (6)   On  filing  each  a^jplication  for  cancellation  of  a  registration, 

28  $15. 

29  (b)   The  Administrator  may  establish  charges  for  materials  or  serv- 

30  ices  furnished  by  the  Office,  not  specified  above,  reasonably  related  to 

31  the  cost  thereof. 

32  REGULATIONS 

33  Sec.  216.  The  Administrator  may  establisli  regulations  not  incon- 

34  sistent  with  law  for  the  administration  of  this  title. 

35  COPIES    OF   RECORDS 

36  Sec.  217.  Upon  payment  of  the  prescribed  fee,  any  person  may 

37  obtain  a  certified  copy  of  any  official  record  of  the  Office  of  the  Admin- 

38  istrator,  which  copy  shall  be  admissible  in  evidence  with  the  same  effect 

39  as  the  original. 


75 


73 

1  CORRECTION    OF   ERRORS   IN   CERTIFICATES 

2  Sec.  -218.  The  Administratoi'  may  correct  any  error  in  a  registration 

3  incurred  through  the  fault  of  the  Office,  or,  upon  payment  of  the  re- 

4  quired  fee,  any  error  of  a  clerical  or  typographical  nature  not  the  fault 

5  of  the  Office  occurring  in  good  faith,  by  a  certificate  of  correction  under 

6  seal.  Such  registration,  together  with  the  certificate,  shall  thereafter 

7  have  the  same  effect  as  if  the  same  had  been  originally  issued  in  such 

8  corrected  form. 

9  OWNERSHIP   AND  TRANSFER 

10  Sec.  219.  (a)  The  property  right  in  a  design  subject  to  protection 

11  under  this  title  shall  vest  in  the  author,  the  legal  representatives  of  a 

12  deceased  author  or  of  one  under  legal  incapacity,  the  employer  for 

13  whom  the  author  created  the  design  in  the  case  of  a  design  made 

14  within  the  regular  scope  of  the  author's  employment,  or  a  person  to 

15  whom  the  rights  of  the  author  or  of  such  employer  have  been  trans- 

16  ferred.  Tlie  person  or  persons  in  whom  the  property  right  is  vested 

17  shall  be  considered  the  proprietor  of  the  design. 

18  (b)  The  property  right  in  a  registered  design,  or  a  design  for  which 

19  an  application  for  registration  has  been  or  may  be  filed,  may  be  as- 

20  signed,  granted,  conveyed,  or  mortgaged  by  an  instrument  in  writing, 

21  signed  by  the  proprietor,  or  may  be  bequeathed  by  will. 

22  (c)  An  acknowledgement  as  provided  in  section  311  shall  be  prima 

23  facie  evidence  of  the  execution  of  an  assignment,  grant,  conveyance, 

24  or  mortgage. 

25  (d)  An  assignment,  grant,  conveyance,  or  mortgage  shall  be  void 

26  as  against  any  subsequent  purchaser  or  mortgage  for  a  valuable  con- 

27  sideration,  without  notice,  unless  it  is  recorded  in  the  Office  of  the 

28  Administrator  within  three  months  from  its  date  of  execution  or  prior 

29  to  the  date  of  such  subsequent  purchase  or  mortgage. 

30  REMEDY   FOR   INFRINGEMENT 

31  Sec.  220.  (a)  The  proprietor  of  a  design  shall  have  remedy  for  in- 

32  fringement  by  civil  action  instituted  after  issuance  of  a  certificate  of 

33  registration  of  the  design. 

34  (b)  The  proprietor  of  a  design  may  have  judicial  review  of  a  final 

35  refusal  of  the  Administrator  to  register  the  design,  by  a  civil  action 

36  brought  as  for  infringement  if  commenced  within  the  time  specified 

37  in  section  212 (d) ,  and  shall  have  remedy  for  infringement  by  the  same 

38  action  if  the  court  adjudges  the  design  subject  to  protection  under  this 

39  title:  Provided,  That  (1)  lie  has  previously  duly  filed  and  duly  pros- 


76 


74 

1  edited  to  such  final  refusal  an  application  in  proper  form  for  reg^is- 

2  tration  of  the  designs,  and  (2)  he  causes  a  copy  of  the  complaint  in 

3  action  to  be  delivered  to  the  Administrator  within  ten  days  after  the 

4  commencement  of  the  action,  and  (3)  the  defendant  has  committed  acts 

5  in  respect  to  the  design  which  would  constitute  infringement  with 

6  respect  to  a  design  protected  under  this  title. 

7  INJUNCTION 

8  Sec.  221.  The  several  courts  having  jurisdiction  of  actions  under 

9  this  title  may  grant  injunctions  in  accordance  with  the  principles  of 

10  equity  to  prevent  infringement,  including  in  their  discretion,  prompt 

11  relief  by  temporary  restraining  orders  and  preliminary  injunctions. 

12  RECOVERY  FOR  INFRINGEMENT,  AND  SO  FORTH 

13  Sec.  222.  (a)  Upon  finding  for  the  claimant  the  court  shall  award 

14  him  damages  adequate  to  compensate  for  the  infringement,  but  in 

15  no  event  less  than  the  reasonable  value  the  court  shall  assess  them. 

16  In  either  event  the  court  may  increase  the  damages  to  such  amount, 

17  not  exceeding  $5,000  or  $1  per  copy,  whichever  is  greater,  as  to  the 

18  court  shall  appear  to  be  just.  The  damages  awarded  in  any  of  the 

19  above  circumstances  shall  constitute  compensation  and  not  a  penalty. 

20  The  court  may  receive  expert  testimony  as  an  aid  to  the  determination 

21  of  damages. 

22  (b)  No  recovery  under  paragraph  (a)  shall  be  had  for  any  infringe- 

23  ment  committed  more  than  three  years  prior  to  the  filing  of  the 

24  complaint. 

25  (c)  The  court  may  award  reasonable  attorney's  fees  to  the  prevail- 

26  ing  party.  The  court  may  also  award  other  expenses  of  suit  to  a 

27  defendant  prevailing  in  an  action  brought  under  section  220(b). 

28  (d)  The  court  may  order  that  all  infringing  articles,  and  any  plates, 

29  molds,  patterns,  models,  or  other  means  specifically  adapted  for  mak- 

30  ing  the  same  be  delivered  up  for  destruction  or  other  disposition  as 

31  the  court  may  direct. 

32  POWER  OF   COURT   OVER   REGISTRATION 

33  Sec.  223.  In  any  action  involving  a  design  for  which  protection  is 

34  sought  under  this  title,  the  court  when  appropriate  may  order  registra- 

35  tion  of  a  design  or  the  cancellation  of  a  registration.  Any  such  order 

36  shall  be  certified  by  the  court  to  the  Administrator,  who  shall  make 

37  appropriate  entry  upon  the  records  of  his  Office. 

38  LIABILITY  FOR  ACTION  ON  REGISTRATION  FRAUDULENTLY  OBTAINED 

39  Sec  224.  Any  person  who  shall  bring  an  action  for  infringement 

40  knowing  that  registration  of  the  design  was  obtained  by  a  false  or 


77 


75 

1  fraudulent  representation  materially  affecting  the  rights  under  this 

2  title,  shall  be  liable  in  the  sum  of  $1,000,  or  such  part  thereof  as  the 

3  court  may  determine,  as  compensation  to  the  defendant,  to  be  charged 

4  against  the  plaintiff  and  paid  to  the  defendant,  in  addition  to  such 

5  costs  and  attorney's  fees  of  the  defendant  as  may  be  assessed  by  the 

6  court. 

7  PENALTY  FOR  FALSE   MARKING 

8  Sec.  225.   (a)   Whoever,  for  the  purpose  of  deceiving  tlie  public, 

9  marks  upon,  or  applies  to,  or  uses  in  advertising  in  connection  with  any 

10  article  made,  used,  distributed,  or  sold  by  him,  the  design  of  which 

11  is  not  protected  under  this  title,  a  design  notice  as  specified  in  section 

12  306  or  any  other  words  or  symbols  importing  that  the  design  is  pro- 

13  tected  mider  this  title,  knowing  that  the  design  is  not  so  protected, 

14  shall  be  fined  not  more  than  $500  for  every  such  offense. 

15  (b)  Any  person  may  sue  for  the  penalty,  in  which  event,  one-half 

16  shall  go  to  the  person  suing  and  the  other  to  the  use  of  the  United 

17  States. 

\g  PENALTY   FOR   FALSE   REPRESENTATION 

19  Sec.  226.  Whoever  knowingly  makes  a  false  representation  mate- 

20  rially  affecting  the  rights  obtainable  under  this  title  for  the  purpose 

21  of  obtaining  registration  of  a  design  under  this  title  shall  be  fined 

22  not  less  than  $500  and  not  more  than  $1,000,  and  any  rights  or  privi- 

23  leges  he  may  have  in  the  design  under  this  title  shall  be  forfeited. 

24  RELATION   TO   COPYRIGHT   LAW 

25  Sec.  227.  (a)  Nothing  in  this  title  shall  affect  any  right  or  remedy 

26  now  or  hereafter  held  by  any  person  under  title  I  of  this  Act. 

27  (b)  When  a  pictorial,  graphic,  or  sculptural  work  in  which  copy- 

28  right  subsists  under  title  I  of  this  Act  is  utilized  in  an  original  oma- 

29  mental  design  of  a  useful  article,  by  the  copyright  proprietor  or  under 

30  an  express  license  from  him,  the  design  shall  be  eligible  for  protection 

31  under  the  provisions  of  this  title. 

32  RELATION    TO   PATENT   LAW 

33  Sec.  228.  (a)  Nothing  in  this  title  shall  affect  any  right  or  remedy 

34  available  to  or  held  by  any  person  under  title  35  of  the  United  States 

35  Code. 

36  (b)  The  issuance  of  a  design  patent  for  an  ornamental  design  for 

37  an  article  of  manufacture  under  said  title  35  shall  terminate  any  pro- 

38  tection  of  the  design  under  this  title. 

39  COMMON    LAW    AND    OTHER    RIGHTS    UNAFFECTED 

40  Sec.  229.  Nothing  in  this  title  shall  annul  or  limit  (1)  common  law 

41  or  other  rights  or  remedies,  if  any,  available  to  or  held  by  any  person 


78 


76 

1  with  respect  to  a  design  which  has  not  been  made  public  as  provided 

2  in  section  304(b),  or  (2)  any  trademark  right  or  right  to  be  protected 

3  against  unfair  competition. 

4  ADMINISTRATOR 

5  Sec.  230.  The  Administrator  and  Office  of  the  Administrator  re- 

6  ferred  to  in  this  title  shall  be  such  officer  and  office  as  the  President 

7  may  designate. 

8  SEVERABILiry  CLAUSE 

9  Sec.  231.  If  any  provision  of  this  title  or  the  application  of  such 

10  provision  to  any  person  or  circumstance  is  held  invalid,  the  remainder 

11  of  the  title  or  the  application  to  other  persons  or  circumstances  shall 

12  not  be  affected  thereby. 

13  AMENDMENT  OF  OTHER  STATUTES 

14  Sec.  232.   (a)   Subdivision  a (2)  of  section  70  of  the  Bankruptcy 

15  Act  of  July  1,  1898,  as  amended   (11  U.S.C.  110(a)),  is  amended 

16  by  inserting  "designs,"  after  "patent  rights". 

17  ( b )  Title  28  of  the  United  States  Code  is  amended — 

18  (1)   by  inserting  "designs,"  after  "patents,"  in  the  first  sentence 

19  of  section  1338(a) ; 

20  (2)  by  inserting  ",  design,"  after  "patent"  in  the  second  sen- 

21  tence  of  section  1338  ( a)  ; 

22  (3)  by  inserting  "design,"  after  "copyright,"  in  section  1338 

23  (b) ; 

24  (4)  by  inserting  "and  registered  designs"  after  "copyrights"  in 

25  section  1400;  and 

26  (5)  by  revising  section  1498  (a)  to  read  as  follows : 

27  "(a)   Whenever  a  registered  design  or  invention  is  used  or  manu- 

28  factured  by  or  for  the  United  States  without  license  of  the  owner 

29  thereof  or  lawful  right  to  use  or  manufacture  the  same,  the  owner's 

30  remedy  shall  be  by  action  against  the  United  States  in  the  Court  of 

31  Claims  for  the  recovery  of  his  reasonable  and  entire  compensation 

32  for  such  use  and  manufacture. 

33  "For  the  purposes  of  this  section,  the  use  or  manufacture  of  a 

34  registered  design  or  an  invention  described  in  and  covered  by  a  patent 

35  of  the  United  States  by  a  contractor,  a  subcontractor,  or  any  person, 

36  firm,  or  corporation  for  the  Grovernment  and  with  the  authorization 

37  or  consent  of  the  Government,  shall  be  construed  as  use  or  manufac- 

38  ture  for  the  United  States. 

39  "The  court  shall   not  award  compensation  under  this  section  if 

40  the  claim  is  based  on  the  use  or  manufacture  by  or  for  the  United 

41  States  of  any  article  owned,  leased,  used  by,  or  in  the  possession  of 


79 


77 

1  the  United  States,  prior  to,  in  the  case  of  an  invention,  July  1,  1918, 

2  and  in  the  case  of  a  registered  design,  July  1,  1978. 

3  "A  Government  employee  shall  have  the  right  to  bring  suit  against 

4  the  Government  under  this  section  except  where  he  was  in  a  position 

5  to  order,  influence,  or  induce  use  of  the  registered  design  or  invention 

6  by  the  Government.  This  section  shall  not  confer  a  right  of  action  on 

7  any  registrant  or  patentee  or  any  assignee  of  such  registrant  or  pat- 

8  entee  with  respect  to  any  design  created  by  or  invention  discovered  or 

9  invented  by  a  person  while  in  the  employment  or  service  of  the  United 

10  States,  where  the  design  or  invention  was  related  to  the  official  func- 

11  tions  of  the  employee,  in  cases  in  which  such   functions  included 

12  reseaiTh  and  development,  or  in  the  making  of  which  Government 

13  time,  materials,  or  facilities  were  used." 

14  TIME  OF  TAKING  EFFECT 

15  Sec.  233.  This  title  shall  take  effect  one  year  after  enactment  of  this 

16  Act. 

17  NO  RETROACTIVE  EFFECT 

18  Sec.  234.  Protection  under  this  title  shall  not  be  available  for  any 

19  design  that  has  been  made  public  as  provided  in  section  204(b)  prior 

20  to  the  effective  date  of  this  title. 

21  SHORT  TIIXE 

22  Sec.  235.  This  title  may  be  cited  as  ''The  Design  Protection  Act  of 

23  1975". 


80 


94tu  congress 

1st  Session 


H.  R.  5345 


IN  THE  HOUSE  OF  REPKESENTATIVES 

Makcii  21,1975 

Mr.  Danif.lson  introduced  the  following  bill ;  which  was  referred  to  the  Com- 
mittee on  the  Judiciary 


To  amend  the  Copyright  Act  of  1909,  and  for  other  purposes. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representa- 

2  fives  of  the  United  States  of  America  in  Congress  assembled, 

3  That  til  is  Act  may  be  cited  as  the   "Performance  Iliglits 

4  Amendment  of  1975". 

5  Sec.  2.  The  first  section  of  title  17,  United  States  Code, 

6  is  amended — 

* 

7  (1)   l)y  striking  out  "and"  where  it  appears  at  the 

8  end  of  suhsections   (c)   and   (d)  ; 

9  (2)    by  striking  out  the  period  at  the  end  of  sub- 

10  section  (e)  and  inserting  in  lieu  thereof  a  semicolon  and 

11  "and"; 


81 


2 

1  (3)    by  striking  out  subsection  (f)  and  inserting  in 

2  lieu  thereof  the  following : 

3  "(f)(1)    To  perform  publicly  for  profit  and  to  reproduce 

4  and  distribute  to  the  public  by  sale  or  other  transfer  of  owner- 

5  ship,  or  by  rental,  lease,  or  lending,  any  reproduction  of  a 

6  copyrighted  work  which  is  a  sound  recording:   Provided, 

7  That  the  exclusive  rights  of  the  owner  of  a  copyright  in  a 

8  sound  recording  to  reproduce  and  perform  it  are  limited  to 

9  the  rights  to  duplicate  the  sound  recording  in  a  tangible 

10  form  that  directly  or  indirectly  recaptures  the  actual  sounds 

11  fixed  in  the  recording,  and  to  perform  those  actual  sounds: 

12  Provided  further,  That  these  rights  do  not  extend  to  the 

13  making  or  duplication  of  another  sound  recording  that  is  an 

14  independent  fixation  of  other  sounds,  or  to  the  perfomiance 

15  of  other  sounds,  even  though  such  sounds  imitate  or  simulate 

16  those  in  the  copyrighted  sound  recording;  or  to  reproduc- 

17  tions   made   by   broadcasting   organizations    exclusively   for 

18  their  own  use. 

19  "  (2)   Where  the  copyrighted  sound  recording  has  been 

20  distributed  to  the  public  under  the  authority  of  the  copyright 

21  owner,  the  public  performance  of  the  sound  recording  shall 

22  be  subject  to  compulsory  licensing  in  accordance  with  the 

23  provisions  of  section  33  of  this  title." ;  and 

24  (4)   by  inserting  immediately  before  the  period  at 

25  the  end  of  the  last  sentence  of  such  section   (relating  to 


82 


o 
O 


1  coin-operated  machines)    a  comma  and  the  following: 

2  "except  that  the  provisions  of  this  sentence  shall  not 

3  apply  to  the  public  performance  of  a  sound  recording 

4  under  subsection  (f )  of  this  section". 

5  Sec.  3.   (a)   Chapter  1  of  title  17,  United  States  Code, 

6  is  amended  by  adding  at  the  end  thereof  the  following  new 

7  section: 

8  "§33.  Compulsory  licensing;  royalties 

9  "(a)    The  annual  royalt}^  fees  for  the  compulsory  li- 

10  cense  provided  for  in  section   1  (f)  (2)    of  this  title  may, 

11  at  the  user's  option,  be  computed  on  either  a  blanket  or  a 

12  prorated  basis.  x\lthough  a  negotiated  license  may  be  substi- 

13  tuted  for  the  compulsory  license  prescribed  by  this  subsec- 
11  tion,  in  no  case  shall  the  negotiated  rate  amount  to  less  than 

15  the  following  apphcable  rate  or  payment : 

16  "  (1)  For  a  radio  broadcast  station  hcensed  by  the 

17  Tederal  Communications  Commission,  the  royalty  rate 

18  or  payment  shall  be  as  follows : 

19  "(A)    in  the  case  of  a  broadcast  station  with 

20  gross  receipts  from  its  advertising  sponsors  of  more 

21  than  $25,000  but  less  than  $100,000  a  year,  the 

22  yearly  performance  royalty  payment  shall  be  $250 ; 

23  or 

24  "(B)    in  the  case  of  a  broadcast  station  with 

25  gross  receipts  from  its  advertising  sponsors  of  more 


83 


4 

1  than  $100,000  hut  less  tlian  $200,000  a  year,  the 

2  yearly  performance  royalty  payment  shall  he  $750 ; 

3  or 

4  "  (C)    in  the  case  of  a  hroadcast  station  with 

5  gross  receipts  from  its  advertising  sponsors  of  more 

6  than  $200,000  a  year,  the  yearly  hlanket  rate  shall 

7  he  1  per  centum  of  the  net  receipts  from  the  adver- 

8  tising  sponsors  during  the  applicahle  period,  and  the 

9  alternative  prorated  rate  is  a  fraction  of  1  per  centum 

10  of  such  net  receipts,  taking  into  account  the  amount 

11  of  the  station's  commercial  time  devoted  to  play- 

12  ing  copyrighted  sound  recordings, 

13  "(2)  For  a  television  broadcast  station  licensed  hy 

14  the  Federal  Communications  Commission,   the  royalty 

15  rate  or  payment  shall  be  as  follows : 

16  _  "  (A)    in  the  case  of  a  broadcast  station  with 

17  gross  receipts  from  its  advertising  sponsors  of  more 

18  than  $1,000,000  but  less  than  $4,000,000  a  year, 

19  the  yearly  performance  royalty  payment   shall  be 

20  $750 ; or 

21  "(B)    in  the  case  of  a  broadcast  station  with 

22  gross  receipts  from  its  advertising  sponsors  of  more 

23  than  $4,000,000  a  year,   the  yearly  performance 

24  i"oyalty  payment  shall  be  $1,500. 

25  "(3)    For   background    music   services    and    other 


84 


5 

1  transmitters  of  performances  of  sound  recordings,   the 

2  yt^arly  blanket  rate  is  2  per  centum  of  the  gross  receipts 

3  from  subscribers  or  others  who  pay  to  receive  the  trans- 

4  mission  during  the  applicable  period,  and  the  alternative 

5  prorated  rate  is  a  fraction  of  2  per  centum  of  such  gross 

6  receipts,    taking  into   account   the   proportion    of   time 

7  devoted  to  musical  performances  by  the  transmitter  dur- 

8  ing  the  applicable  period. 

9  "  (4)  For  an  operator  of  coin-operated  phonorecord 

10  players,  the  yearly  performance  royalty  payment  shall 

11  be  $1  for  each  phonorecord  player. 

12  "(5)    For  all  other  users  not  otherwise  exempted, 

13  the  blanket  rate  is  $25  per  year  for  each  location  at 

14  which    copyrighted    sound    recordings    are    performed, 

15  and  the  alternative  prorated  rate  shall  be  based  on  the 
1^  number  of  separate  performances  of  such  works  during 
1'''  the  year  and  shall  not  exceed  $5  per  day  of  use. 

■^^  "  (6)  No  royalty  fees  need  be  paid  for  a  compulsory 

19  license  for  the  public  performance  of  copyrighted  sound 

20  recordings  by  a  radio  broadcast  station  where  its  annual 

21  gross  receipts  from  advertising  sponsors  were  less  than 

22  $25,000,  by  a  television  broadcast  station  where  its  an- 

23  nual  gross  receipts  from  advertising  sponsors  were  less 

24  than  $1,000,000,  or  by  a  background  music  service  or 
2^  other  transmitter  of  performances  of  somid  recordings 


85 


6 

1  where  its  annual  gross  receipts  from  subscribers  or  others 

2  who  pay  to  receive   the   transmission  were   less   than 

3  $10,000. 

4  "(b)  The  annual  royalty  fees  provided  in  subsection  (a) 

5  shall  be  applicable  until  such  time  as  the  royalty  rate  is 

6  agreed  upon  by  negotiation  between  the  copyright  owner  and 

7  the  hcensee,  or  their  designated  representatives:  Provided, 

8  That  the  annual  royalty  fees  provided  for  in  subsection   (a) 

9  shall  be  applicable  for  a  period  of  not  less  than  two  years 

10  following  the  date  of  enactment  of  the  Performance  Rights 

11  Amendment  of  1975.  In  the  event  that  the  parties  or  their 

12  representatives  are  unable  to  agree  upon  a  royalty  rate  pur- 

13  suant  to  negotiation,  the  public  performance  of  the  sound 

14  recording  shall  be  subject  to  compulsory  licensing  at  a  royalty 

15  rate  and  under  terms  which  shall  be  set  by  an  arbitration 

16  panel  composed  of  three  members  of  the  American  Arbitra- 

17  tion  Association,  of  which  one  member  of  the  panel  shall  be 

18  selected  separately  by  each  of  the  parties  in  disagreement, 
]^9  and  one  member  shall  be  selected  jointly  by  the  parties  in 

20  disagreement. 

21  "(c)   The  royalty  fees  collected  pursuant  to  this  section 

22  shall   be   divided   equally  between   the   performers   of   the 

23  sound  recording  and  the  copyright  owners   of  the   sound 

24  recording.  Neither  a  performer  nor  a  copyright  owner  may 

25  assign  his  right  to  the  royalties  provided  for  in  this  section 


86 


7 

1  to  the  copyright  owner  or  performer  of  tlie  sound  recording, 

2  respectively. 

3  "  (cl)  -^s  used  in  this  section,  the  term — 

4  "(1)    'performers'  means  musicians,   singers,   con- 

5  ductors,  actors,  naiTators,  and  others  whose  performance 

6  of  a  liteiary,  musical,  or  dramatic  work  is  embodied  in  a 

7  sound  recording ;  and 

8  "  (2)   'net  receipts  from  advertising  sponsors'  means 

9  gross  receipts  from  advertising  sponsors  less  any  com- 

10  missions    paid    ])y    a    broadcast    station    to    advertising 

11  agencies.". 

12  (b)    The  analysis  of  such  chapter  is  amended  by  add- 

13  ing  at  the  end  thereof  the  following  new  item : 

"33.  Compulsory  licensing;  royalties.". 


87 


94th  congress 
IsT  Session 


H.  It  4965 


IN  THE  HOUSE  OF  REPRESENTATIVES 

March  14,1975 

Mr.  Won  Pat  introduced  the  following  bill ;  which  was  referred  to  the  Com- 
mittee on  the  Judiciary 


A  BILL 

For  the   amendment   of   the   Copyright  Law,   title    17   of   the 

United  States  Code. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representa- 

2  fives  of  the  United  States  of  America  in  Congress  assembled, 

3  That  title  17  of  the  United  States  Code,  entitled  "Copy- 

4  rights",  is  hereby  amended  by  adding  new  section  101  (f) 

5  to  read  as  follows : 

6  "  (f )   For  all   the   purposes   of  the   provisions   of   this 

7  title  deaUng  with  infringements  of  copyright,  including  crimi- 

8  nal   prosecution  pursuant   to   section    104   of   this   title,    a 

9  person  shall  not  infringe  or  have  infringed  the  copyright  in 

10  any  work  protected  under  the  copyright  laws  of  the  United 

11  States  who, 


88 


2 

1  "  ( 1 )   f or  the  pui-pose  of  transmission  on  a  noncon- 

2  tiguous   area   cable    television    system,    has    made    or 

3  shall  cause  to  be  made,   or  has   transmitted   or  shall 

4  cause  to  be  transmitted,  a  videotape  of  a  television  pro- 

5  gram  or  programs  broadcast  by  one  or  more  television 

6  stations    hcensed    by    the     Federal     Conomunications 

7  Commission;   and   when   after   the   enactment   of   this 

8  subsection : 

9  "  (i)    the   videotape   is   transmitted   no   more 

10  than  one  time,   without  deletion  of  any  material 

11  including  commercials,   on  any  such  system;  and 

12  "  (ii)  an  owner  or  oflScer  of  such  facility  erases 

13  or  destroys,  or  causes  the  erasure  or  destruction  of 
1^  such  videotape;  and 

1''^  "  (iii)  subject  to  the  provisions  of  subparagraph 

^C  (2)   of  this  subsection,  on  or  before  the  end  of  each 

l'^  calendar  quarter,  an  owner  or  officer  of  such  system 

18  executes   an   aflSdavit  attesting   to    the   erasure   or 

19  destruction  of  all  such  videotapes  made  or  used  dur- 

20  ing  the 'preceding  quarter;  and 

21  "(iv)  said  owner  or  officer  places  or  causes  said 

22  affidavit,  or  the  affidavit  received  pursuant  to  section 

23  101  (f)  (2)  (ii)   of  this  title,  to  be  placed  in  a  file, 

24  open   to  public  inspection,  at  such  system's  main 

25  oflSce  in  the  community  where  the  transmission  is 


89 

3 

;j'  made  or  in  the  nearest  community  where  such  sys- 

2      '  tern  maintains  an  office. 

3-  *'(2)  Nothing  herein  shall  prevent  any  such  system, 

4  pursuant  to  written  contract,  from  transferring  the  video- 

5  tapes  to  another  such  system  provided  that: 

•6  "  (i)  said  Vv-ritten  contract  is  placed  in  the  file, 

7  open  to  public  inspection,  required  hereunder;  and 

Q-  "  (ii)  the  last  such  facility  transmitting  the  pro- 

9  grams  shall  comply  with  the  provisions  of  section 

10  101  (f)  (1)  (ii)  through  (iv)  of  this  title,  and  shall 

11  "  (iii)   provide  a  copy  of  the  affidavit  required 
12r  hereunder  to  each  such  system  making  a  previous 

13  'transmission  of  the  same  \ideotape. 

14  "  (3)  As  used  in  this  subsection,  the  following  terms 

15  and  their  variant  forms  mean  the  following: 

16  "(i)    a  'transmission'  is  the  distribution  by  a 

17  noncontiguous   area   cable    television   system   of   a 

18  videotape  to  its  subscribers  and  is  the  equivalent  of 

19  the  carriage  of  broadcast  signals  for  all  the  purposes 

20  of  the  rules  and  regulations  of  the  Federal  Oom- 

21  munications  Commission. 

22  "(ii)  a  'noncontiguous  area  cable  television*  is 

23  a  facility  located  in  any  State,  territor}^  trust  ter- 

24  ritory,   or  possession  not  within   the  boundary  of 

25  the  fortj^-eight  contiguous  continental  States,   that 

57-786—76 7 


90 

4 

1  receives  signals   transmitted  or  makes  or  obtains 

2  videotapes  of  programs  broadcast  by  one  or  more 

3  'television  broadcast  stations  licensed  by  the  Federal 

4  Communications  Commission  and  delivere  such,  sig- 

5  nals  or  programs  by  wires,  cables,  or  other  commu- 

6  nications  channels  to  subscribing  members  of  the 

7  public  who  pay  for  such  service. 

8  "(iii)   A.  'videotape'  is  the  reproduction  of  the 

9  images  and  sounds  of  a  program  or  programs,  in- 
10  eluding  commercials,  broadcast  by  a  television  sta- 
ll tion  licensed  by  the  Federal  Communications  Com- 
^2  mission,  regardless  of  the  nature  of  the  material 
13  objects,  such  as  tapes  or  motion  pictures,  in  which 
•^^  the  reproduction  is  embodied. 


91 

TESTIMONY  OF  JOHN  G.  LORENZ,  ACTING  LIBRARIAN  OF  CON- 
GRESS, ACCOMPANIED  BY  ABRAHAM  L.  KAMINSTEIN,  FORMER 
REGISTER  OF  COPYRIGHTS  AND  HONORARY  CONSULTANT  IN 
COPYRIGHT  AT  THE  LIBRARY  OF  CONGRESS,  AND  BARBARA 
RINGER,  REGISTER  OF  COPYRIGHTS,  THE  LIBRARY  OF  CONGRESS 

Mr.  LoREXz.  Mr.  Chairman,  T  am  Jolin  Lorenz,  the  Acting  Librarian 
of  Congress.  It  is  an  honor  for  me  to  appear  as  the  opening  wit- 
ness  at  these  historic  hearings,  and  to  urge  your  favorable  considera- 
tion of  H.R.  22'23,  the  bill  for  general  revision  of  the  copyright  huv. 

In  1905,  President  Theodore  Roosevelt  called  upon  Congress  to' 
bring  together  and  completely  revise  the  copyright  laws  of  the  United 
States,  After  long  hearings  and  several  years  of  controversy  Congress 
responded  by  enacting  a  new  statute  on  the  last  day  of  President 
Roosevelt's  administration.  The  act  of  March  4, 1909  remains,  66  years 
later,  the  governing  American  copyright  law. 

President  Theodore  Roosevelt's  message  of  1905  is  still  valid  for  us 
today.  He  wrote : 

Our  copyright  laws  urgently  need  revision.  They  are  imperfect  in  definition, 
confused  and  inconsistent  in  expression;  they  omit  provision  for  many  articles 
which,  under  modern  reproductive  processes,  are  entitled  to  protection ;  they 
impose  hardships  upon  the  copyright  proprietor  which  are  not  essential  to  the 
fair  practices  of  the  public ;  they  are  difficult  for  the  courts  to  interpret  and 
impossible  for  the  Copyright  Office  to  administer  with  satisfaction  to  the  public. 

The  aptness  of  Roosevelt's  message  today  is  not  as  ironic  as  it  might 
seem.  Legislation  is  often  specific.  It  grows  out  of  individual  circum- 
stances and  relates  to  definite  purposes  at  definite  times  and  conse- 
Cj[uently  is  subject  to  change. 

As  time  passes,  the  ability  of  courts  to  adapt  the  letter  of  the  law 
to  each  change  diminishes.  Cardozo  put  it  well :  ""The  law  tends  to 
expand  to  the  limits  of  its  logic."  The  logical  limits  of  the  present 
copyright  laws  have  long  since  been  reached  and  exceeded. 

In  recent  years  there  have  been  several  important  Supreme  Court 
decisions  illustrating  the  inadequacy  of  the  1909  act.  At  the  same 
time,  administrative  regulations  cannot  cure  the  law's  inequities  and 
private  understandings  or  agreements  cannot  settle  the  crucial  issues 
of  copyright. 

Everyone  affected  by  copyright  or  concerned  with  its  administra- 
tion is  looking  to  Congress  for  action.  New  legislation,  a  new  order- 
ing of  the  relationships  that  depend  upon  copyright,  is  required,  and 
only  Congress  can  do  the  job. 

As  Acting  Librarian  of  Congress  I  am  proud  of  the  role  that  the 
Copyright  Office  has  played  for  many  years  in  the  efforts  to  reform 
the  existing  copyright  system.  I  am  particularly  pleased  to  see  Abra- 
ham L.  Kaminstein  here,  who  as  Register  of  Copja-ights  from  1960  to 
1971  was  largely  instrumental  in  planning  the  present  revision  effoit. 
But  beyond  these  efforts  the  basic  responsibility,  with  its  broad  social 
and  indeed  philosophical  implications,  continues  to  fall  upon  your 
subcommittee. 

Mr.  Chairman,  you  have  been  involved  in  this  work  for  well  over 
a  decade,  and  more  than  most,  you  appreciate  the  infinite  complexity 
of  many  of  the  issues  treated  in  H.R.  2223.  Ten  years  ago  the  former 


92 

Librarian  of  Congress,  L.  Quincy  Mumford,  sat  before  this  subcom- 
mittee and  said : 

Copyright  law  is  by  nature  a  diflScult  and  complex  subject,  and  my  under- 
standing of  its  details  is  imperfect,  to  say  the  least.  But,  like  any  other  intricate 
field  of  knowledge,  there  are  certain  simple  and  fundamental  principles  under- 
lying our  copyright  system,  and  their  importance  cannot  be  overemphasized. 

As  Dr.  Mumford  said,  one  simple  principle  underlying  copyright 
is  the  encouragement  and  reward  of  individual  creativity.  This  princi- 
ple is,  I  would  suggest,  a  basic  corollary  of  the  principle  of  freedom 
of  speech  and  press.  It  is  a  recognition  that  those  parts  of  our  civil- 
ization that  have  endured  are  the  product  of  individual  creators,  and 
the  principle  of  copyright  is  basic  to  civilization  itself. 

But  the  principle  of  copyright  is  also  rooted  in  the  present,  and  the 
practical  concerns  of  authors  and  all  those  who  disseminate  and  use 
their  works.  Since  1909,  the  pace  of  technological  innovation,  espe- 
cially in  commimicationSj  has  been  breathtaking. 

In  these  hearings  you  will  hear  those  who  argue,  forcefully  and  in 
good  faith,  that  technology  threatens  to  strip  copyright  of  its  meaning 
and  value.  Others,  in  equally  good  faith,  will  stress  that  copyright  is 
impeding  the  application  of  technology  to  the  growing  informa- 
tional needs  of  society. 

Congress  must  chart  the  way,  and,  difficult  as  that  task  is,  it  can  be 
made  easier,  I  believe,  by  keeping  always  in  mind  the  underlying 
social  premises  of  copyright  in  a  free  society. 

Kecognizing  the  equities  on  both  sides  of  the  arguments  you  will  be 
hearing,  the  Library  of  Congress  urges  favorable  consideration  of 
H.R.  2223.  This  legislation  is  the  culmination  of  15  years  of  pains- 
taking negotiation  and  compromise. 

It  does  not  provide  all  of  the  answers,  but  it  does  provide  a  modern 
framew^ork  for  growth  and  change:  New  tools  for  the  courts,  the 
Copyright  Office,  for  the  authors  and  the  users  of  copyrighted  mate- 
rials, to  meet  the  challenges  of  the  future. 

This  is  the  kind  of  effort  that  involves  little  widespread  recognition 
and  a  great  deal  of  difficulty  and  toil.  But  I  am  convinced  that,  when 
all  is  said  and  done,  your  work  will  have  a  significant  impact  on  the 
lives  of  all  Americans — those  who  create  and  those  w^hose  lives  are 
shaped  and  changed  by  their  creations. 

As  the  present  administrator  of  the  world's  greatest  collection  of 
those  creative  works,  I  believe  that  your  success  in  this  endeavor  will 
be  one  of  your  greatest  legislative  achievements. 
Thank  you  very  much. 
Mr.  Kastenmeier.  Thank  you,  Mr.  Lorenz. 
Mr.  Kaminstein  ? 

Ms.  Ringer.  If  I  may,  Mr.  Chairman,  I  would  like  to  ask  the  privi- 
lege of  introducing  Mr.  Kaminstein. 

Mr.  Kastenmeier.  Yes,  of  course,  Ms.  Ringer. 

Ms.  Rtn(;er.  The  current  program  for  general  revision  of  the 
copyright  law  started  in  the  fifties  under  Arthur  Fisher,  who  was  a 
great  Register  of  Copyrights.  He  charted  a  course  which  we  en- 
deavored to  follow,  and  he  put  his  personal  stamp  on  the  revision 
program. 

Arthur  Fisher  died  in  1960,  at  a  crucial  point  in  the  revision  pro- 
gram, and  was  succeeded  by  Abraham  L.  Kaminstein.  It  is  hard  to 


93 

realize  how  difficult  it  was  for  Kami  to  take  over  an  ongoing  pro- 
gram of  that  sort,  one  that  had  as  much  of  a  personal  stamp  on  it 
as  the  revision  program  had  in  1960,  and  to  make  the  changes  that 
were  necessary  to  make  it  go,  and  eventually  to  chart  a  cliiferent 
course— because  tliere  were  many  things  in  the  original  planning 
that  had  to  be  changed. 

All  of  these  Mr.  Kaminstein  did.  He  made  a  number  of  personal 
sacrifices,  including  sacrifices  in  his  health.  The  revision  program  cer- 
tainly would  have  gone  nowhere  without  his  disinterested  optimism 
and  his  willingness  to  explore  every  possibility,  his  spirit  of  good 
will,  and  his  personal  integrity.  He  earned  everyone's  respect. 

As  a  personal  note,  he  hired  me  out  of  law  school,  and  everything 
I  know  about  copyright  I  either  owe  to  him  directly  or  to  the  oppor- 
tunities he  gave  me  to  learn.  He  is  a  loyal  friend  and  a  noble  human 
being,  and  it  is  a  great  honor  for  me  to  introduce  him. 

Mr.  Kastenmeier.  Mr.  Kaminstein  ? 

Mr.  Kaminstein.  Mr.  Chairman  and  members  of  the  subcommittee, 
my  name  is  Abraham  Kaminstein,  and  I  hold  the  position  of 
Honorary  Consultant  in  Copyright  at  the  Library  of  Congress.  De- 
spite this  fancy  title,  I  must  state  that  I  appear  before  you  representing 
only  myself  and  without  any  brief  except  for  my  own  profound  belief 
in  the  value  of  the  legislation  you  are  considering. 

I  am  privileged  and  pleased  to  appear  before  you  in  support  of 
H.R.  2223  for  the  general  revision  of  the  copyright  law.  This  legisla- 
tion, which  many  of  you  are  now  involved  with  for  the  first  time,  has 
been  for  me  almost  a  life's  work. 

Before  my  retirement  in  1971  I  spent  23  years  in  the  Copyright 
Office,  the  last  11  of  them  as  the  Register  of  Copyrights.  Interestingly 
enough,  it  is  almost  exactly  20  years  since  my  immediate  predecessor, 
Arthur  Fisher,  asked  for  and  was  granted  funds  by  Congress  to  ini- 
tiate studies  leading  to  the  overall  revision  of  the  copyright  laws. 

Published  between  1956  and  1960,  35  major  studies  examined  cur- 
rent interpretations  of  the  1909  Copyright  Act,  analyzed  its  short- 
comings and  inequities  and  set  out  alternative  measures  for  reform. 
Well  over  a  decade  later,  they  still  remain  vital  and  enduring  con- 
tributions to  our  law. 

In  the  early  1960's  the  Copyright  Office  sponsored  a  series  of  round- 
table  discussions  based  on  recommendations  made  in  the  1961  Reg- 
ister's Report  on  Copyright  Revision  and  the  preliminary  legislative 
drafts  that  began  to  emerge.  The  talks  filled  four  volumes ;  they  were 
sometimes  difficult,  but  they  did  succeed  in  identifying  areas  of  agree- 
ment and  dispute,  thus  sharpening  the  issues. 

By  1964,  it  was  possible  to  submit  a  bill  for  the  general  revision  of 
the  law,  and  to  participate  in  hearings  in  1965  before  your  subcom- 
mittee and  under  your  dedicated  chairmanship.  Looking  back  to  1965. 
I  am  startled  by  the  scope  of  our  achievements  and  I  have  become  a  bit 
philosophical  about  the  problems  we  failed  to  recognize  at  the  tinie. 
As  incredible  as  it  may  seem  now,  our  first  proposals  said  nothing 
about  cal)le  television,  and  photocopying  was  not  regarded  as  an  issue 
which  required  special  legislatiA^e  provisions.  Some  of  these  problems 
were  aired  in  the  extensive  hearings  which  you  conducted.  Mr.  Chair- 
man, and  new  provisions  were  added,  and  when,  in  1967,  the  House 
passed  the  bill,  we  seemed  well  on  our  way  to  success. 


94 

We  all  know  that  the  entire  bill  reached  an  impasse  in  the  Senate 
because  of  the  inability  to  solve  the  issue  of  cable  television.  I  must 
confess  that  in  1968,  recognizing  that  nothing  was  going  to  move 
unless  somehow  the  CATV  issue  could  be  solved  or  dealt  with 
separately,  I  gave  in  to  some  despair. 

Testifying  before  the  Senate  Subcommittee  on  Patents,  Trademarks 
and  Copyrights,  I  said  that  I  had  been  musing  on  Yeats'  poem,  "To  a 
Friend  Whose  Work  Has  Come  to  Nothing."  Nothing  much  to  encour- 
age me  happened  for  a  long  time. 

Certainly  I  feci  no  such  despair  today. 

At  the  last  session  of  Congress,  the  Senate  passed  the  revision  bill 
by  a  margin  of  70-1,  and  every  indication  seems  to  point  to  a  consensus 
in  that  body  that  this  is  a  measure  whose  time,  at  long  last,  has  come. 
Although  insufficient  time  remained  in  the  last  session  for  House 
consideration,  the  status  of  the  general  revision  legislation  was  one  of 
the  points  covered  in  your  subcommittee's  hearings  on  November  26, 
1974,  on  S.  3976,  a  short  bill  whose  enactment  effective  December  31, 
1974,  appears  to  pave  the  way  for  favorable  action  in  both  Houses 
during  the  current  Congress. 

I  should  like  to  close  my  statement  by  offering  some  personal  obser- 
vations based  on  years  of  involvement  with  copyright  revision.  I  should 
like  to  recall  the  constructive  spirit  of  the  1965  hearings  for  I  fer- 
vently hope  that  they  will  be  repeated  in  the  work  you  begin  today. 
Nine  j^ears  ago.  Mr.  Chairman,  your  subcommittee  met  for  51  execu- 
tive sessions,  over  a  7-month  period,  to  prepare  a  bill  for  the  full 
Judiciary  Committee. 

Congressmen,  members  of  a  busy  subcommittee,  wei-e  willing  and 
glad  to  spend  an  extraordinary  amount  of  time  and  effort  on  a  bill 
that  could  not  have  meant  much  to  them  politically,  that  could  not 
gain  them  any  votes.  What  made  this  extraoi'dinary  effort  possible,  and 
indeed  successfid.  was  the  prevailing  spirit  of  compromise — construc- 
tive and  reasonable,  rather  than  destructive  and  extreme.  I  called  it 
"An  Experiment  in  Legislative  Technique."  It  was  the  most  exhilarat- 
ing expei'ionce  of  my  legal  careei". 

All  of  us  are  special  pleaders,  no  matter  how  moral  we  feel  our  case 
to  be.  For  my  part,  I  make  no  bones  about  favoring  authors,  com- 
posers, and  ai'tists.  But  I  know,  nevertlieless,  that  everyone  must  make 
some  compromise.  My  experience  convinces  me  that  there  are  no  easy 
sl)()rtcnts  in  cojjyriglit,  and  no  side  can  afford  the  luxury  of  a  com- 
plete victory.  Neither  can  we  embrace  categorical  solutions;  what  they 
possess  in  simplicity,  they  sacrifice  in  ordinar}'  justice.  What  is  needed 
is  a  responsible  and  considered  compromise,  for  only  such  a  compromise 
will  best  serve  the  interests  of  nil. 

Tliis  will  require  statesmanship  of  the  highest  order,  and  I  hope  you 
will  feel  the  personal  satisfaction  that  comes  with  a  job  well  done. 
Thaiik  you,  jNIr.  (^hairman. 

]Mi'.  Kastkn'meier.  Thank  you,  Mr.  Kaminstein,  for  a  most  eloquent 
and  personal  statem.ent  on  a  subject  many  regard  as  impersonal. 

I  am  almost  sorry,  however,  to  mention  that  in  1966  we  had  51 
executive  sessions  over  a  7-month  period.  You  will  detect  some  trepida- 
tion among  my  subcommittee  members  who  have  not  been  through  that 
experience.  [Laughter.] 

j\Iuch  of  that  work  will  not  have  to  be  redone,  I  expect.  Perhaps 
this  is  not  the  time,  as  I  introduce  the  next  witness,  to  conmiend  people 


95 

before  our  task  is  completed  for  indeed  historically  one  day  I  am  sure 
that  the  names  of  Fisher,  Kaminstein,  and  Ringer  will,  in  terms  of 
copyi'ight  and  its  history  of  this  country,  liave  an  extraordinary  place. 

For  my  part,  legislatively,  I  would  like  to  recall  that  the  chairman 
of  the  full  committee,  Mr.  Celler,  who  served  Congress  so  well  for  so 
many  years,  has  always  felt  so  deeply  about  and  has  been  a  very  great 
patron  of  copyriglit. 

From  the  legislative  standpoint  I  think  he  also  deserves  very  special 
recognition. 

In  any  event,  I  would  like  to  call  on  the  person  on  whom  we  are  going 
to  have  to  lean  heavily,  not  only  this  morning  but  in  days  to  come,  in 
resolving  whatever  of  the  issues  still  remain. 

We  would  be  very  pleased  to  hear  from  our  Register  of  Copyrights, 
Ms.  Barbara  Ringer. 

Ms.  Ringer.  Thank  you  very  much,  ]\fr.  Chairman.  I  am  accom- 
panied by  Dorothy  Schrader,  general  counsel  of  the  Copyright  Office, 
who  I  hope  will  get  me  out  of  trouble  if  I  get  into  it. 

The  Copyright  Office  has  prepared  portfolios  consisting  of  19  fold- 
ers. 18  of  which  deal  with  separate  issues  or  chapters  of  sections  of  the 
bill.  Some  are  much  more  important  than  others.  On  the  left  side  of 
each  folder  we  have  put  the  relevant  sections  on  the  particular  issue, 
and  on  the  right  side  we  have  tried  to  summarize  the  contents  of  the 
bill,  give  some  of  the  background  of  the  provisions  and  analyze  the 
contents  of  the  bill  in  a  rather  simple,  brief  way. 

Some  of  the  provisions  of  the  bill,  as  you  well  know,  Mr.  Chairman, 
do  not  yield  their  meaning  readily  on  a  first,  or  second,  or  even  third 
reading. 

In  any  case  T  hope  that  they  will  be  useful  to  the  committee.  They 
are  intended  for  reference  and  not  as  fundamental  legislative  history. 

But  I  hope  the  material  on  the  right  side  can  l)e  considered,  in  effect, 
my  statement  on  the  issues  that  are  involved  at  this  point  and  be  made 
a  part  of  the  record  of  the  hearings.  I  have  also  a  prepared  statement 
which  is  for  the  record  and  I  don't  think  I  need  to  go  into  it  in  vast 
detail  because  both  you,  Mr.  Chaii'man,  and  Mr.  Kaminstein,  have 
referred  to  the  comments  I  have  made  in  it. 

I  would,  however,  like  to  make  a  few  points  from  it  and  then  go  on 
to  a  summary  of  the  principal  issues  speaking  more  or  less  from  these 
briefing  papers. 

[The  material  referred  to  appears  in  app.  2.] 

As  I  see  them  now  but  without  in  any  way  trying  to  predict  what 
other  witnesses  will  say  during  the  course  of  these  hearings  because  I 
don't  think  anyone,  no  matter  how  close  they  are  to  the  subject,  can 
do  that 

Mr.  Kastenmeier.  I  urge  you  not  to  oversummarize.  "We  do  hope 
that — we  regard  your  testimony  as  very  important  at  the  outset  to 
get  certain  frames  of  reference  for  the  committee.  Some  of  it  may 
be  lost  to  us  if  it  is  confined  exclusively  to  the  record. 

Ms.  RiXGER.  I  take  your  point,  Mr.  Chairman.  Then  I  will  read 
at  least  a  major  part  of  this  statement. 

[The  prepared  statement  of  Ms.  Ringer  follows :] 

Statement  of  Barbara  Ringer,  Register  of  Copyrights 

Mr.  Chairman,  I  am  Barbara  Ringer,  Register  of  Copyrights  in  the  Copyright 
Office  of  the  Library  of  Congress.  I  appear  today  in  support  of  H.R.  2223,  to 
review  its  long  and  difficult  legislative  history,  and  to  try  to  answer  any  questions 
you  have  about  its  contents,  its  status,  and  the  issues  remaining  to  be  settled. 

The  Federal  copyright  law  now  in  effect  in  the  United  States  was  adopted  in 


96 

1909  and  has  been  amended  in  only  a  few  relatively  minor  ways.  It  is  essen- 
tially a  Nineteenth  Century  copyright  law,  based  on  assumptions  concerning  tJie 
creation  and  dissemination  of  author's  works  that  have  been  completely  over- 
turned in  the  past  fifty  years.  A  Twentieth-Century  copyright  statute  is  long 
overdue  in  the  United  States,  and  the  present  need  for  a  revised  law  that  will 
anticipate  the  Twenty-First  Century  is  so  obvious  as  to  be  undeniable. 

It  is  startling  to  realize  that  the  program  for  general  revision  of  the  copyright 
law  actually  got  underway  more  than  50  years  ago,  in  1924,  and  produced  four  dis- 
tinct legislative  efforts  before  World  War  II :  The  Dallinger,  Perkins,  and  Vestal 
Bills  in  1924-1931,  the  Sirovich  Bill  in  1932,  the  Duffy  Bill  in  1934-1936,  and  the 
"Shotwell"  Bill  in  1939.  One  of  these  measures  passed  the  House,  and  a  later 
one  passed  the  Senate,  but  in  every  case  the  revision  program  ultimately  failed 
of  enactment  because  of  fierce  opposition  to  particular  provisions  by  certain 
groups.  The  history  of  U.S.  copyright  law  revision  in  the  1920's  and  1930's 
teaches  a  basic  lesson  :  the  need  to  work  out  accommodations  on  the  critical  issues 
in  an  atmosphere  of  good  will  and  give  and  take.  It  is  a  great  deal  easier  to 
recognize  the  validity  of  this  i)roiK)silit)n  than  to  i)ut  it  into  practice. 

The  failure  of  the  earlier  efforts  at  general  revision  of  tlie  copyright  law  has 
been  blamed  on  one  group  or  another,  and  on  the  face  of  it  there  does  appear  to 
be  quite  a  bit  of  blame  to  go  around.  At  the  same  time  it  is  important  not  to 
forget  that  the  main  purpose  behind  some  of  the  revision  bills  was  to  permit 
U.S.  adherence  to  the  International  Convention  of  Berne.  There  can  be  little 
doubt  that  some  of  the  Congressional  opposition  to  copyright  law  revision  stemmed 
from  basic  objections  to  U.S.  acceptance  of  foreign  principles  of  copyright  juris- 
prudence and  to  U.S.  assumption  of  the  international  obligations  involved  in 
becoming  a  member  of  the  Berne  Union. 

After  World  War  II  the  proponents  of  copyright  law  reform  adopted  a  new 
approach.  It  was  assumed,  on  the  basis  of  past  experience,  that  efforts  to  revise 
the  copyright  law  in  a  way  that  would  permit  adherence  to  the  Berne  Convention 
would  continue  to  be  futile.  It  was  also  recognized  that  the  emergence  of  the 
United  States  as  a  major  exporter  of  cultural  materials  made  our  adherence  to 
a  multilateral  convention  essential.  Thiis.  efforts  to  secure  general  revision  of  the 
copyright  law  were  temporarily  deferred  in  favor  of  a  major  program  aimed  at 
developing  and  implementing  a  new  international  copyright  convention  to  which 
the  United  States  could  adhere  without  major  changes  in  our  law.  These  efforts, 
under  the  leadership  of  Ileglster  of  Copyrights,  Arthur  Fisher,  achieved  success 
in  1952  with  the  signing  at  Geneva  of  the  Universal  Copyright  Convention,  fol- 
lowed in  1954  by  the  enactment  of  revisions  to  the  1909  statute  permitting  U.S. 
adherence  to  the  UCC,  and  by  the  coming  into  force  of  the  Convention  in  1955. 

Noteworthy  as  it  was,  the  achievement  of  bringing  the  United  States  into  the 
international  copyright  community  also  served  to  dramatize  once  more  how 
archaic  and  inadequate  the  U.S.  copyright  statute  of  1909  had  become.  The  autumn 
of  1955,  which  saw  the  coming  into  force  of  the  Universal  Copyright  Convention 
and  the  inauguration  of  the  current  program  for  general  revision  of  the  copyright 
law,  marked  the  end  of  one  epoch  and  the  beginning  of  another.  In  August  1955, 
Congress  authorized  the  formation  of  a  Panel  of  Consultants  on  General  Revision 
of  the  Copyright  Law  under  the  chairmanship  of  the  Register  of  Copyrights,  and 
the  Copyright  Office  undertook  a  series  of  basic  studies  of  the  major  substantive 
issues  involved  in  revision.  At  the  same  time  began  what  has  become  a  seemingly 
endless  series  of  meetings  and  discussions  with  representatives  of  virtually  every 
interest  group  affected  by  the  copyright  law.  By  now  these  discussions,  which  have 
been  as  valuable  as  they  have  been  time-consuming,  must  literally  run  into  the 
thousands. 

The  study  phase  of  the  current  revision  program  began  almost  exactly  20  years 
ago,  in  1955.  It  was  supposed  to  take  three  years,  but  it  took  about  six.  It  pro- 
duced 35  studies  covering  most  of  what  we  thought  at  the  time  were  the  sub- 
stantive issues  in  copyright  revision.  These  were  published,  together  with  a  large 
body  of  comments  from  the  Panel  of  Consultants,  and  I  am  proud  to  say  that  they 
are  all  still  in  print. 

The  culmination  of  this  effort  was  the  publication,  in  1961.  of  the  1961  Report 
of  the  Register  of  Copyrights  on  General  Revision  of  the  Copyright  Law.  The 
Register's  Report  was  the  first  of  many  major  contributions  to  the  general  revi- 
sion program  by  Abraham  L.  Kaminstein.  INIr.  Fisher's  successor  as  Register  of 
Copyrights.  The  purpose  of  the  Reports,  as  Mr.  Kaminstein  said  in  his  1962  Annual 
Report,  "was  to  furnish  a  tangible  core  around  which  opinions  and  conclusions 
could  crystalize — to  achieve  the  widest  possible  agreement  on  basic  principles 


97 

before  proceeding  to  draft  a  revised  copyright  law."  The  Report  attempted  to  pin- 
point the  major  issues  in  revision,  summarize  the  present  hiw  with  respect  to  each 
of  tliem,  analyze  alternative  solutions,  and  present  specific  recommendations. 

The  Register's  Report  succeeded  very  well  in  clarifying  the  issues  and  in 
focusing  the  discussions  on  them,  but  some  of  its  most  fundamental  recommenda- 
tions proved  more  controversial  than  anyone  in  the  Copyright  Office  had  expected. 
In  particular,  the  Register's  proposal  for  copyright  to  begin  with  "public  dis- 
semination" and  to  last  for  a  first  term  of  28  years,  renewable  for  a  .second  term 
of  48  years,  provoked  a  flood  of  opposition  ;  there  was  strong  support  for  a  single 
Federal  copyright  system  with  protection  commencing  upon  the  creation  of  a  work 
and  ending  50  years  after  the  author's  death.  A  series  of  meetings  of  the  Panel 
of  Consultants  on  General  Revision  was  held  between  September  1961,  and  March 
1962,  at  which  all  of  the  Report's  recommendations  were  discussed  in  an  increas- 
ingly tense  atmosphere.  The  heated  arguments  at  these  and  other  meetings  actu- 
ally'stalled  the  revision  program  for  several  months  and  brought  it  to  a  genuine 
crisis  in  the  later  summer  and  fall  of  1962.  It  became  apparent  that,  if  the  entire 
project  was  not  to  flounder,  some  method  for  advancing  and  considering  alterna- 
tive recommendations  would  have  to  be  found. 

In  November  1962,  the  Register  announced  that  the  Copyright  Offiee  was  pre- 
pared to  change  its  position  on  some  debatable  questions  and  to  draft  alternative 
language  on  others.  He  indicated  that  the  Office  was  prepared  to  revise  its  recom- 
mendations concerning  "public  dissemination"  and  the  retention  of  common  law 
protection,  and  that  "at  least  one  alternative  version  of  our  draft  bill  will  adopt 
the  life-plus  basis  for  computing  the  term — in  conjunction  with  a  system  of  notice, 
deposit,  and  registration  that  we  consider  essential."  The  Register  also  announced 
that  he  would  send  preliminary  drafts  of  .statutory  language  to  the  members  of  an 
expanded  Panel  of  Consultants  on  General  Revision  for  their  comments,  and  that 
he  would  -convene  another  series  of  meetings  on  the  preliminary  draft.  The  proc- 
ess of  preparing  draft  language  for  circulation  occupied  practically  all  of  1963,  and 
included  a  total  of  eight  meetings  of  the  Panel  of  Consultants. 

The  development  of  this  preliminary  draft  proved  to  l)e  a  difficult  but  enor- 
mously productive  phase  of  the  program.  The  procedure  adopted  provided  a  motive 
and  a  forum  for  detailing,  critical  scrutiny  of  the  language  and  substance  of  a  new 
copyright  statute  by  representatives  of  nearly  all  of  the  groups  affected.  It  also 
created  an  atmosphere  of  cooperative  effort  that  has  survived  various  stresses  and 
strains  and  has  continued  to  grow  in  breadth  and  depth. 

The  preliminary  draft  of  the  general  revision  bill  that  had  reached  completion 
at  the  beginning  of  1964  was  never  intended  to  l)e  a  final  report.  The  next  six 
months  were  devoted  to  compiling,  analyzing,  and  synthesizing  all  of  the  com- 
ments received  on  the  draft,  to  making  substantive  decisions  and  changes  on 
the  basis  of  these  comments,  and  to  preparing  a  complete,  section-by-section 
revision  of  the  bill.  The  draft  of  the  bill  that  emerged  from  this  process  was 
prepared  entirely  within  the  Copyright  Office  without  collaboration  or  consulta- 
tion with  any  private  groups  or  individuals.  The  introduction  of  the  1964  draft 
in  July  1964 'marked  the  end  of  the  drafting  phase  of  the  revision  program  and 
the  opening  of  the  legislative  phase. 

Like  the  preliminary  draft  on  which  it  was  based,  the  1964  bill  was  not  intended 
as  a  finished  product,  but  as  a  focal  point  for  further  comments  and  suggestions. 
In  August  1964,  a  full  week  of  detailed  discussions  of  the  bill  showed  that  a 
great  deal  of  progress  had  been  made,  but  that  still  further  revisions  would  be 
necessary  l)efore  legislative  hearings  could  profitably  begin.  During  the  fall  and 
winter  of  1964-1965  the  Copyright  Office  reviewed  and  analyzed  the  many  oral 
and  written  comments  on  the  bill  and  prepared  another  complete  revision. 

At  the  beginning  of  the  89th  Congress,  on  February  4,  1965,  Representative 
Celler  introduced  the  1965  general  revision  bill  and  the  Copyright  Office  six>nt 
the  next  three  months  preparing  a  supplement  to  the  1961  Register's  Report. 
The  Supplementary  Report  of  the  Register  of  Copyrights  on  the  General  Revision 
of  the  U.S.  Copyright  Law :  1965  Revision  Bill  which  was  published  in  May  1965, 
set  forth  the  reasons  for  changing  a  number  of  recommendations  in  the  1961 
report  and  clarified  the  meaning  of  the  provisions  of  the  1965  bill. 

Publication  of  the  Supplementary  Report  coincided  with  the  oi)ening  of  Con- 
gressional hearings  on  the  bill.  Over  a  period  of  more  than  three  months,  between 
May  26,  1965  and  September  2,  1965,  22  days  of  public  hearings  were  held  before 
your  subcommittee,  under  the  objective  and  dedicated  chairmanship  of  the  man 
who  is  still  your  chairman,  Robert  W.  Kastenmeier.  A  total  of  163  mtnesses, 
representing  an  extraordinarily  wide  range  of  public  and  private  interests, 


98 

appeared  to  testify.  The  record  of  those  1965  hearings  oomprises  nearly  2,000 
pages  of  printed  text,  including  not  only  the  oral  transcript  but  also  more  than 
150  written  statements.  The  Senate  Judiciary  Subcommittee  under  the  chair- 
manship of  Senator  John  McClellan  of  Arkansas,  held  brief  hearings  on  the 
revi-sion  bill  in  August  11*65,  but  delayed  a  full  series  pending  the  conclusion 
of  the  inten.se  activity  in  the  House  subcommittee. 

Several  significant  factors  with  respect  to  the  general  revision  program  emerged 
from  the  11)65  hearings.  Most  obvious  were  the  sharp  controversies  remaining 
to  be  settled  on  some  old  issues  (such  as  the  jukebox  exemption,  the  royalty  rate 
to  be  paid  under  the  compulsory  license  for  recording  music,  and  the  manufac- 
turing requirements  with  respect  to  English-language  books  and  periodicals), 
and  on  some  relatively  new  issues  (such  as  fair  use,  and  the  reproduction  of 
copyrighted  works  for  educational  and  research  purposes,  the  liability  of  educa- 
tional broadcaster.s  and  similar  transmitter;?,  and  the  status  of  community 
antenna  television  systems  under  the  copyright  law). 

Aside  from  the  need  to  work  out  further  accommodations  on  several  critical 
issues,  the  most  serious  problem  arising  from  the  1965  hearings  was  now  to  orga- 
nize the  massive  contents  of  the  record  in  a  way  that  would  overlook  no  signifi- 
cant comment  or  suggestion  but  that  still  would  form  a  comprehensive  basis  for 
decision-making.  Working  in  close  collaboration,  the  Copyright  Oflice  and  the 
House  Judiciary  Committee  counsel  prepared  summaries  of  every  statement  that 
had  been  made,  and  then  divided  the  entire  corpus  of  the  hearings  into  ten  gen- 
eral areas:  subject  matter  of  copyright,  ownership,  duration,  notice  and  regis- 
tration, manufacturing  and  importation  requirements,  community  antenna  sy.s- 
tems  and  other  secondary  transmissions,  jukebox  performances,  compulsory 
license  for  phonorecords,  educational  copying  and  fair  use,  and  educational  broad- 
casting and  other  i>erforming  rights.  Each  subject  was  then  divided  into  sub- 
topics, under  which  were  listed  every  issue  raised  at  the  hearings. 

This  "experiment  in  legislative  technique,"  as  it  has  been  called,  proved  effec- 
tive. It  enabled  the  House  Judiciary  Subcommittee,  in  its  deliberations  of  the 
bill,  to  consider  each  issue  In  context,  to  weigh  the  arguments  for  and  against 
it,  and  to  arrive  at  reasoned  decisions.  Meeting  regularly,  usually  twice  a  week, 
from  February  through  September  1966,  the  subcommittee  held  51  executive 
sessions,  all  of  which  were  attended  by  representatives  of  the  Copyright  Office. 
Examining  each  issue  in  deptli  and  then  redrafting  the  pertinent  section  of  the 
bill  as  they  went  along,  the  subcommittee  produced  an  entirely  revised  bill  in 
an  atmosphere  of  informal,  bipartisan  discussions  that  could  well  serve  as  a 
model  for  similar  legislative  projects. 

The  bill,  as  revised  by  the  subcommittee,  was  reported  Tinanimously  to  the  full 
House  Judiciary  Committee  on  September  21,  1966.  and  was  reported  without 
amendment  by  the  full  Judiciary  Committee  on  October  12,  1960.  The  House  Re- 
port still  remains  the  basic  legislative  explanation  of  the  content  of  the  bill,  and 
the  rei)orts  succeeding  it  in  both  Houses  have  all  been  drawn  from  it. 

The  bill  was  reported  too  late  in  the  89th  Congress  for  further  legislative 
action,  and  indeed  none  had  been  expected  in  1966.  In  the  revised  form  reported 
by  the  House,  it  was  introduced  by  Representative  Celler  in  the  90th  Congress, 
and  Avas  considered  by  the  newly-constituted  membership  of  Subcommittee  3, 
again  chaired  by  Representative  Kastenmeier  on  Feliruary  20.  24  and  27,  1967. 
It  was  reiwrted  to  the  full  Committee  on  the  last  of  these  dates  and,  after  ratlier 
heated  debates  in  the  full  committee  on  February  28  and  March  2,  1967,  was 
again  reported  to  the  House.  This  time,  however,  the  report  included  minority 
views  by  Representatives  Byron  G.  Rogers  of  Colorado  and  Basil  L.  Whitener 
of  North  Carolina,  devoted  to  the  jukebox  issue,  and  additional  dissent  by  Mr. 
Whitener  on  the  bilFs  treatment  of  CATV. 

It  was  becoming  increasingly  apparent,  as  the  bill  moved  toward  the  House 
floor,  that  extremely  sharp  and  unreconciled  conflicts  on  the  issues  of  jukel)ox 
performance  and  CATV  transmissions  remained,  and  that  there  was  a  serious 
danger  that  one  or  both  of  these  issues  could  defeat  the  bill.  The  bill  was  con- 
sidered by  the  House  Rules  Committee  on  March  8,  1967.  and  tlie  rather  acrimo- 
nious arguments  in  the  Committee  before  it  took  action  authorizing  full  debate 
on  the  House  floor  were  another  danger  signal. 

The  debates  of  the  bill  in  the  House  of  Representatives  on  April  6.  1967.  were 
difficult  and  protracted.  When  the  House  finally  recessed  after  7  :00  p.m.,  it  was 
apparent  that  a  rescue  ox)eration  was  essential.  Over  the  next  four  days,  in  an 
atmosphere  of  intense  crisis,  several  crucial  compromises  were  achieved,  and  on 


99 

Tuesday,  April  11,  an  amended  bill  was  passed  by  the  House  after  mild  del)ate 
witli  the  e.vtraurdinary  vote  of  379  yeas  to  29  nays.  Fairly  radical  changes  were 
made  in  three  areas :  there  were  drastic  revisions  in  the  provisions  es-tablishing 
copyri;?ht  liability  for  jukebox  performances ;  the  provisions  dealing  with  com- 
munity antenna  transmission  were  dropped  entirely  and  the  exemptions  for  in- 
s'truetional  broadcasting  were  considerably  broadened.  On  the  other  hand,  the 
structure  and  content  of  the  bill  itself  has  remained  substantially  intact. 

The  Senate  Judiciary  Committee,  which  had  opened  hearings  in  1965  and  had 
had  a  short  series  of  hearings  on  the  CATV  problem  in  1966,  resumed  full-scale 
consideration  of  the  bill,  under  the  joint  chairmanship  of  Senators  McClellan 
and  Burdick.  on  March  15,  1967.  Indeed,  tlie  Senate  hearings  were  in  full  swing 
during  the  crisis  in  the  House,  and  for  a  time  the  general  revision  program  re- 
sembled a  two-ring  circus  in  more  ways  than  one.  To  everyone's  surprise  the 
record  of  the  Senate  hearings,  which  lasted  10  days  and  ended  on  April  2S,  1967, 
very  nearly  equals  that  of  the  House  hearings  in  size  and  content. 

Of  the  several  areas  that  emerged  as  fullblown  issues  at  the  Senate  hearings, 
by  far  the  most  important  is  the  iiroblem  of  the  use  of  copyrighted  works  in 
automated  information  storage  and  retrieval  systems.  This  prolilem  was  ad- 
dressed separately  in  the  context  of  the  creation  of  a  National  Commission  on 
New  Technological  Uses  which  Congress  enacted  as  separate  legislation  only  last 
year,  and  which  is  still  awaiting  staffing. 

Meanwhile,  as  the  1967  legislative  momentum  began  to  slow  more  and  more, 
it  was  increasingly  apparent  that  cable  television  had  become  the  make-or-break 
issue  for  copyright  revision.  Although  the  Senate  Judiciary  Subcommittee  worked 
long  and  hard  between  1968  and  1970  to  resolve  controversies  over  a  number  of 
issues  other  than  cable,  and  succeeded  in  reporting  the  revised  bill  to  the  full 
Senate  Judiciary  Committee  during  the  91.s't  Congress,  it  was  not  able  to  push 
revision  any  further.  An  effort  .spearheaded  by  the  Copyright  Office  to  gain  enact- 
ment of  a  "barebones"'  bill,  containing  everything  except  the  cable  section  and 
other  controversial  provisions  dealing  with  economic  rights,  also  failed.  By  1971 
it  was  apparent  that  the  bill  was  completely  stymied  over  the  CATV  issue,  and 
even  the  issuance  of  comprehensive  FCC  rules  in  1972,  governing  the  carriage  of 
.signals  and  programming  by  cable  systems,  failed  to  break  the  impa.sse. 

Because  of  this  long  delay.  Congress  has  passed  a  series  of  succe.ssive  bills 
ex*tending  the  term  of  coi)yright.  The.'^e  now  run  through  the  end  of  the  current 
CVmgress,  and  are  scheduled  to  expire  on  December  31,  1976.  Tlie  urgent  proVt- 
lem  of  tape  piracy  was  also  taken  care  of  through  separate  legislation.  A  total 
of  seven  years  passed  between  House  passage  of  the  bill  in  1967  and  the  resumi)- 
tion  of  its  active  consideration  in  the  Senate  Subcommittee  last  year. 

There  may  have  been  other  reasons,  but  certainly  the  most  immediate  cause  of 
the  revision  bill's  new  momentum  was  the  Supreme  Court  decision  in  CBS  v. 
Teleprotnpter,  holding  that  under  the  1909  statute  cable  systems  are  not  lialde 
for  copyright  infringement  when  they  import  distant  signals.  The  decision  wa.^ 
followed  quickly  by  favorable  actions  in  the  Senate  Judiciary  Subcommittee  and 
full  Committee  and,  after  a  brief  referral  to  the  Commerce  Committee,  by  passage 
in  the  Senate  on  September  9,  1975,  by  a  vote  of  70-1.  In  late  November  your 
Subcommittee  held  a  hearing  which,  in  one  respect  was  a  forerunner  of  these 
hearings.  I  testified  in  an  optimistic  vein  at  that  time,  and  I  remain  hopeful 
that  at  long  la.st  the  entire  revision  measure  will  be  enacted  into  law  during  the 
current  Congress. 

Ms.  Ringer.  The  Federal  copyright  law  now  in  effect  in  the  United 
States  was  adopted  in  1909  and  has  been  amended  in  only  a  few  rela- 
tively minor  ways.  It  is  essentially  a  19th  ccntnry  copyright  law,  based 
on  assumptions  concerning  the  creation  and  dissemination  of  author's 
works  that  have  been  completely  overturned  in  the  past  50  years. 

A  20th-century  copyright  statute  is  long  overdue  in  the  United 
States,  and  the  present  need  for  a  revised  law  that  will  anticipate  the 
21st  century  is  so  obvious  as  to  be  undeniable.  , 

.  It  is  startling  to  realize  that  the  program  for  general  revision  of 
the  copyright  law  actually  got  miderway  more  than  50  years  ago.  in 
1924,  and  produced  four  distinct  legislative  efforts  before  World  "War 
II.  I  will  not  go  through  the  bills,  but  the  period  covered  was  1924 


100 

to  1939.  One  bill  was  produced  just  on  the  eve  of  World  War  II  after 
extensive  consideration.  That  bill  died  because  of  the  war. 

One  of  these  measures  passed  the  House,  and  a  later  one  passed  the 
Senate,  but  in  every  case  the  revision  program  ultimately  failed  of 
enactment  because  of  fierce  opposition  to  particular  provisions  by 
certain  groups. 

The  history  of  the  U.S.  copyright  law  revision  in  the  1920's  and  1930's 
teaches  a  basic  lesson :  The  need  to  work  out  accommodations  on  the 
critical  issues  in  an  atmosphere  of  good  will  and  give  and  take.  It 
is  a  great  deal  easier  to  recognize  the  validity  of  this  proposition  than 
to  put  it  into  practice. 

The  failui'e  of  the  earlier  efforts  at  general  revision  of  the  copy- 
right law  has  been  blamed  on  one  group  or  another,  and  on  the  face 
of  it  there  does  appear  to  be  quite  a  bit  of  blame  to  go  around.  At 
the  same  time,  it  is  important  not  to  forget  that  the  main  purpose  at 
that  time  behind  some  of  the  revision  bills  was  to  permit  U.S.  adher- 
ence to  the  International  Convention  of  Berne. 

There  can  be  little  doubt  that  some  of  the  congressional  opposition 
to  copyright  law  i-evision  stemmed  from  basic  objections  to  U.S. 
acceptance  of  foreign  principles  of  copyright  jurisprudence,  and  to 
V.S.  assumption  of  the  international  obligations  involved  in  becoming 
a  member  of  tlie  Berne  Union. 

If  it  had  not  been  for  that  issue,  the  copyright  law  would  have 
been  revised  during  that  period,  in  my  opinion. 

After  World  War  II  the  proponents  of  copyright  law  reform 
adopted  a  new  approach.  It  was  assumed,  on  the  basis  of  past  experi- 
ence, that  efforts  to  revise  the  copyright  law  in  a  way  that  would 
permit  adherence  to  the  Berne  Convention  would  continue  to  be  futile. 

It  was  also  recognized  that  the  emergence  of  the  United  States  as  a 
major  exporter  of  cultural  materials  made  our  adherence  to  a  multi- 
lateral convention  essential.  Thus,  efforts  to  secure  general  revision 
of  the  copyright  law  were  temporarily  deferred  in  favor  of  a  major 
program  aimed  at  developing  and  implementing  a  new  international 
copyright  convention  to  which  the  United  States  could  adhere  without 
major  changes  in  our  law. 

it  was  essential  to  develop  and  get  implemented  a  new  international 
convention  aimed  at  bringing  the  United  States  into  a  multilateral 
copyright  arrangement  without  requiring  us  to  make  major  changes 
in  tiie  1909  law.  Tliis  was  done  under  the  leadership  of  Arthur  Fisher, 
then  register  of  copyrights.  They  succeeded  in  1952  with  the  signing 
of  the  Universal  Copyright  Convention,  followed  in  1954  by  the 
enactment  of  revisions  to  the  1909  statute  permitting  U.S.  adherence 
to  tlie  UCC,  and  by  the  coming  into  force  of  the  convention  in  1955. 

Noteworthy  as  "it  was,  the  achievement  of  bringing  the  United 
States  into  the  international  copyright  community  also  served  to 
dr-amatize  once  more  how  archaic  and  inadequate  the  U.S  copyright 
statute  of  1909  had  become. 

The  autumn  of  1955,  which  saw  the  coming  into  force  of  the  Uni- 
versal Copyright  Convention  and  the  inauguration  of  the  current  pro- 
gram for  general  revision  of  the  copyright  law,  marked  the  end  of 
one  era  and  the  beginnins:  of  another.  I  think  the  dividing  line  was 
August  1955. 


101 

In  August  1955,  Congress  authorized  the  formation  of  a  Panel  of 
Consultants  on  General  Eevision  of  the  Copyright  Law  under  the 
chairmanship  of  the  register  of  copyrights,  and  the  Copyright  Office 
undertook  a  series  of  basic  studies  of  the  major  substantive  issues 
involved  in  revision. 

At  the  same  time  began  what  has  become  a  seemingly  endless  series 
of  meetings  and  discussions  with  representatives  of  virtually  every 
interest  group  affected  by  the  copyright  law. 

By  now  these  discussions,  which  have  been  as  valuable  as  they  have 
been  time  consuming,  must  literally  run  into  the  thousands,  and  they 
are  still  going  on. 

The  study  phase  of  the  current  revision  program  began  almost 
exactly  20  years  ago,  in  1955.  It  was  supposed  to  take  3  years,  but  it 
took  about  6.  It  produced  35  fairly  comprehensive  studies  covering 
most  of  what  we  thought  at  the  time  were  the  substantive  issues  in 
copyright  revision. 

These  were  published,  together  with  a  large  body  of  comments  from 
the  Panel  of  Consultants,  and  I  am  proud  to  say  that  tliey  are  all  still 
in  print. 

The  culmination  of  this  effort  was  the  publication,  in  1961,  of  the 
1961  Report  of  the  Register  of  Copyrights  on  General  Revision  of  the 
Copyright  Law.  The  Register's  report  was  the  first  of  many  major 
contributions  to  the  general  revision  program  by  Abraham  L.  Kamin- 
stein,  Mr.  Fisher's  successor  as  Register  of  Copyrights.  The  purpose 
of  the  reports,  as  Mr.  Kaminstein  said  in  his  1962  annual  report: 

"Was  to  furnish  a  tangible  core  around  wliich  opinions  and  conclusions  could 
crystalize — to  achieve  the  widest  possible  agreement  on  basic  principles  before 
proceeding  to  draft  a  revised  copyright  law." 

The  report  attempted  to  pinpoint  the  major  issues  in  revision, 
summarize  the  present  law  with  respect  to  each  of  them,  analyze  alter- 
native solutions,  and  present  specific  recommendations. 

The  Register's  report  succeeded  very  well  in  clarifying  the  issues 
and  in  focusing  the  discussions  on  them,  but  some  of  its  most  funda- 
mental recommendations  proved  more  controversial  than  anyone  in 
the  Copyright  Office  had  expected. 

In  particular,  the  Register's  proposal  for  copyright  to  begin  with 
"public  dissemination''  and  to  last  for  a  first  term  of  28  years,  renew- 
able for  a  second  term  of  48  years,  provoked  a  flood  of  opposition; 
there  was  strong  support  for  a  single  Federal  copyright  system  with 
protection  commencing  upon  the  creation  of  a  work  and  ending  50 
years  after  the  author's  death. 

A  series  of  meetings  of  the  Panel  of  Consultants  on  General  Revi- 
sions, after  the  publication  of  the  Register's  report,  was  held  between 
September  1961,  and  March  1962,  at  which  all  of  the  report's  recom- 
mendations were  discussed  in  an  increasingly  tense  atmosphere. 

The  heated  arguments  at  these  and  other  meetings  actually  stalled 
the  revision  program  for  several  months  and  brought  it  to  a  genuine 
crisis  in  the  late  summer  and  fall  of  1962.  It  became  apparent  that,  if 
the  entire  project  were  not  to  founder,  some  method  for  advancing 
and  considering  alternative  recommendations  would  have  to  be  found. 
In  other  words,  the  Copyright  Office  had  to  reconsider  its  position. 


102 

In  November  1962,  the  Register  announced  that  the  Coi)yright  Of- 
fice was  prepared  to  change  its  position  on  some  debatable  questions 
and  to  draft  alternative  language  on  others.  He  indicated  that  the 
Office  was  prepared  to  revise  its  recommendations  concerning  "public 
dissemination"  and  the  retention  of  common  law  protection,  and  that, 
'*at  least  one  alternative  version  of  our  draft  bill  will  adopt  the  life- 
plus  basis  for  computing  the  term — in  conjunction  with  a  system  of 
notice,  deposit,  and  registration  that  we  consider  essential." 

The  Register  also  announced  that  he  would  send  preliminary. drafts 
of  statutory  language  to  the  members  of  an  expanded  Panel  of  Con- 
sultants on  General  Revision  for  their  comments,  and  that  he  would 
convene  another  series  of  meetings  on  the  preliminary  draft. 

The  process  of  preparing  draft  language  for  circulation  occupied, 
jDractically  all  of  1963,  and  included  a  total  of  eight  meetings  of  the 
Panel  of  Consultants. 

The  development  of  this  preliminary  draft  proved  to  be  a  difficult 
but  enormously  productive  phase  of  the  program.  The  procedure 
adopted  provided  a  motive  and  a  forum  for  detailed,  critical  scrutiny 
of  the  language  and  substance  of  a  new  copyright  statute  by  repre- 
sentatives of  nearly  all  of  the  groups  affected. 

It  also  created  an  atmosphere  of  cooperative  effort  that  has  survived 
various  stresses  and  strains  and  has  continued  to  grow  in  breadth 
and  depth. 

The  preliminary  draft  of  the  general  revision  bill,  tliat  had  readied 
completion  at  the  beginning  of  1964,  was  never  intended  to  be  a  final 
product.  The  next  6  months  were  devoted  to  compiling,  analyzing, 
and  synthesizing  all  of  the  comments  received  on  the  draft,  to  making 
substantive  decisions  and  changes  on  the  basis  of  these  comments, 
and  to  preparing  a  complete,  section-by-section  revision  of  the  bill. 

The  draft  of  the  bill  that  emerged  from  this  process  was  prepared 
entirely  within  the  Copyright  Office  without  collaboration  or  con- 
sultation with  any  private  groups  or  individuals  involved.  The  intro- 
duction of  the  1964  draft  in  July  1964,  marked  the  end  of  the  draft- 
ing phase  of  the  revision  program  and  the  opening  of  the  legislative 
phase. 

Like  the  preliminary  draft  on  which  it  was  based,  the  1964  bill 
was  not  intended  as  a  finished  product,  but  as  a  focal  point  for  further 
comments  and  suggestions.  In  August  1964,  a  full  Aveek  of  detailed 
discussions  of  the  bill  showed  that  a  great  deal  of  progress  had  been 
made,  but  that  still  further  revisions  would  be  necessary  befoi-e  legis- 
lative hearings  could  profitably  begin. 

Durino;  the  fall  and  winter  of  1964-65,  the  Copyright  Office  reviewed 
and  analyzed  the  many  oral  and  written  comments  on  the  bill  and 
pi'epared  another  complete  revision. 

At  the  beginning  of  the  89th  Congress,  on  February  4,  1965,  Rep- 
resentative Celler  introduced  the  1965  General  Revision  bill  and  the 
Copvriffht  Office  spent  the  noxt  3  months  preparing  a  supplement  to 
tho  1961  Recfister's  Report.  The  '^ui^plementary  roport  of  the  Remster 
of  Copyri2"hts  on  the  General  Revision  of  the  TT.S.  Copyright  Law: 
1965  Revision  bill  which  was  pu])lished  in  INfav  1965.  s^t  forth  ^'^'f' 
I'pasons  for  chanjnnp-  n  number  of  recommendations  in  the  19fi1 
To^^ort  nnd  clarified  the  meaning  of  the  provisions  of  the  1965  bill. 

Publication  of  the  supplementary  report  coincided  with  the  open- 


103 

ing  of  congressional  hearings  on  the  bill.  Over  a  period  of  more  than 
3  months,  between  May  26,  1965  and  September  2,  1965,  22  days  of 
public  hearings  were  held  before  your  subcommittee,  under  the  ob- 
jective and  dedicated  chairmanship  of  the  man  who  is  still  your 
chairman,  Robert  W.  Kastenmeier. 

A  total  of  163  witnesses,  representing  an  extraordinarily  wide  range 
of  public  and  private  interests,  appeared  to  testify.  The  record  of 
those  1965  hearings  comprises  nearly  2,000  pages  of  printed  text, 
including  not  only  the  oral  transcript  but  also  more  than  150  written 
statements. 

The  Senate  Judiciary  Subcommittee  under  the  chairmanship  of 
John  McClellan  of  Arkansas,  held  brief  hearings  on  the  Revision 
bill  in  August  1965,  but  delayed  a  full  series  pending  the  conclusion 
of  the  intense  activity  in  the  House  subcommittee. 

Several  significant  factors  with  respect  to  the  general  revision 
program  emerged  from  the  1965  hearings.  Most  obvious  were  the 
sharp  controversies  remaining  to  be  settled  on  some  old  issues — 
such  as  the  jukebox  exemption,  the  royalty  rate  to  be  paid  under  the 
compulsory  license  for  recording  music,  and  the  manufacturing 
requirements  with  respect  to  English-language  books  and  periodicals— 
and  on  some  relatively  new  issues — such  as  fair  use,  and  the  reproduc- 
tion of  copyrighted  works  for  educational  and  research  purposes, 
the  liability  of  educational  broadcasters  and  similar  transmitters, 
and  the  status  of  community  antenna  television  systems  under  the 
copyright  law. 

Aside  from  the  need  to  work  out  further  accommodations  on  sev- 
eral critical  issues,  the  most  serious  problem  arising  from  the  1965 
hearing  was  how  to  organize  the  massive  contents  of  the  record 
in  a  way  that  would  overlook  no  significant  comment  or  suggestion 
but  that  still  would  form  a  comprehensible  l^asis  for  decisionmaking. 
Let  me  say  a  personal  word  about  those  51  days  of  subcommittee  meet- 
ings, since  they  were  very  significant. 

Working  in  close  collaboration,  the  Copyright  Office  and  the  House 
Judiciary  Committee  counsel  prepared  summaries  of  every  state- 
ment that  had  been  made,  and  then  divided  the  entire  corpus  of  the 
hearings  into  10  general  areas:  Subject  matter  of  copyright,  owner- 
ship, duration,  notice  and  registration,  manufacturing  and  importa- 
tion requirements,  community  antenna  systems  and  other  secondary 
transmissions,  jukebox  performances,  compulsory  license  for  phono- 
records,  educational  copying  and  fair  use,  and  educational  broad- 
casting and  other  performing  rights. 

Each  subject  was  then  divided  into  subtopics,  under  which  were 
listed  every  issue  raised  at  the  hearings. 

The  "experiment  in  legislative  technique,''  as  it  has  been  called, 
proved  effective.  I  think  the  effectiveness  will  become  more  and  more 
apparent  as  you  progress  in  1975.  It  enabled  the  House  Judiciary 
Subcommittee,  in  its  deliberations  of  the  bill,  to  consider  each  issue 
in  context,  to  weigh  the  arguments  for  and  against  it,  and  to  arrive  at 
reasoned  decisions. 

Meeting  regularly,  usually  twice  a  week,  from  February  through 
September  1966,  the  subcommittee  held  51  executive  sessions,  all  of 
which  were  attended  by  representatives  of  the  Copyright  Office. 
Examining  each  issue  indepth  and  then  redrafting  the  pertinent  sec- 


104 

tion  of  the  bill  as  they  went  alon*;,  the  subcommittee  produced  an  en- 
tirely revised  bill  in  an  atmosphere  of  informal,  bipartisan  discus- 
sions that  could  well  serve  as  a  model  for  similar  legislative  projects. 

The  bill,  as  revised  by  the  subcommittee,  was  reported  unanimously 
to  the  full  House  Judiciary  Committee  on  September  21,  1966,  and 
was  reported  without  amendment  by  the  full  Judiciary  Committee  on 
October  12, 1966. 

The  House  report  still  remains  the  basic  leo-islative  explanation  of 
the  content  of  the  bill,  and  the  reports  succeeding  it  in  both  Houses 
have  all  been  drawn  from  it. 

The  bill  was  reported  too  late  in  the  89th  Congress  for  further 
legislative  action,  and  indeed,  none  had  been  expected  in  1966.  In 
the  revised  form  reported  by  the  House,  it  was  introduced  by  Repre- 
sentative Celler  in  the  90th  Congress,  and  was  considered  by  the  newly 
constituted  membership  of  Subcommittee  No.  3,  again  chaired  by 
Representative  Kastenmeier,  on  February  20,  24,  and  27,  1967. 

It  was  reported  to  the  full  committee  on  the  last  of  these  dates,  and, 
after  rather  heated  debates  in  the  full  committee  on  February  28  and 
March  2,  1967,  was  again  reported  to  the  House. 

This  time,  however,  the  report  included  minority  views  by  Rep- 
resentatives Byron  G.  Rogers  of  Colorado  and  Basil  L.  Whitener  of 
North  Carolina,  devoted  to  the  jukebox  issue,  and  additional  dissent 
by  Mr.  Whitener  on  the  bill's  treatment  of  C ATV. 

It  was  becoming  increasingly  apparent,  as  the  bill  moved  toward  the 
House  floor,  that  extremely  sharp  and  unreconciled  conflicts  on  the 
issues  of  jukebox  performance  and  CATV  transmissions  remained, 
and  that  there  was  a  serious  danger  that  one  or  both  of  these  issues 
could  defeat  the  bill. 

The  bill  was  considered  by  tlie  Plouse  Rules  Committee  on  March 
8,  1967,  and  the  rather  acrimonious  arguments  in  the  committee  be- 
fore it  took  action  authorizing  full  debate  on  the  House  floor  were 
another  danger  signal. 

The  debates  of  the  bill  in  the  House  of  Representatives  on  April  6, 
1967,  were  difficult  and  protracted,  to  say  the  least.  When  the  House 
finally  recessed  after  7  p.m.,  it  was  apparent  that  a  rescue  operation 
was  essential.  Over  the  next  4  days,  in  an  atmosphere  of  intense  crisis, 
several  crucial  compromises  were  achieved,  and  on  Tuesday,  iVpril  11, 
1967,  an  amended  bill  was  passed  by  the  House  after  mild  debate  with 
the  extraordinary  vote  of  379  yeas  to  29  nays. 

Fairly  radical  changes  were  made  in  three  areas:  There  were  dras- 
tic revisions  in  the  provisions  establishing  copyright  liability  for  juke- 
box performances;  the  provisions  dealing  with  community  antenna 
transmission  were  dropped  entirely  and  the  exemptions  for  instruc- 
tional broadcasting  were  considernbh/  broadened.  On  the  other  hand, 
the  structure  and  content  of  the  bill  itself  has  remained  substantially 
intact. 

The  Senate  Judiciary  Subcommittee,  which  had  opened  hearings 
in  196.5,  and  had  had  a  short,  series  of  hearinirs  on  the  CATV  problem 
in  1966,  resumed  full-scale  consideration  of  the  bill,  under  the  joint 
chairmanship  of  Senators  McClellan  and  Burdick,  on  March  15, 
1967. 

Indeed,  the  Senate  hearings  were  in  full  swing  during  the  crisis  in 
the  House,  and  for  a  time  the  general  revision  program  resembled  a> 


105 

two-ring  circus  in  more  Avays  than  one.  To  everyone's  surprise  the 
record  of  the  Senate  hearings,  which  lasted  10  days  and  ended  on. 
April  28,  1967,  very  nearly  equals  that  of  the  House  hearings  in  size 
and  content. 

Of  the  several  areas  that  emerged  as  fullblown  issues  at  the  Senate 
hearings,  by  far  the  most  important  is  the  problem  of  the  use  of 
copyrighted  works  in  automated  information  storage  and  retrieval 
systems.  This  problem  was  addressed  separately  in  the  context  of 
the  creation  of  a  National  Commission  on  New  Technological  Uses 
which  Congress  enacted  as  separate  legislation  only  last  year,  and 
which  is  still  awaiting  statnng  from  the  White  House. 

Meanwhile,  as  the  1967  legislative  momentum  began  to  slow  more 
and  more,  it  was  increasingly  apparent  that  cable  television  had  be- 
come the  make-or-break  issue  for  copyright  revision.  Although  the- 
Senate  Judiciary  Subcommittee  worked  long  and  hard  between  1968 
and  1970  to  resolve  controversies  over  a  number  of  issues  other  than 
cable,  and  succeeded  in  reporting  the  revised  bill  to  the  full  Senate 
Judiciary  Committee  during  the  91st  Congress,  it  was  not  able  to  push 
revision  any  further. 

An  effort  spearheaded  by  the  Copyright  Office  to  gain  enactment 
of  a  "barebones"'  bill,  containing  everything  except  the  cable  section 
and  other  controversial  provisions  dealing  with  economic  rights,  also 
failed  for  tactical  reasons. 

By  1971,  it  was  apparent  that  the  bill  was  completely  stymied  over 
the  CATV  issue,  and  even  the  issuance  of  comprehensive  FCC  rules 
in  1972,  governing  the  carriage  of  signals  and  programing  by  cable 
systems,  failed  to  break  the  impasse. 

Because  of  this  long  delay,  Congress  has  passed  a  series  of  succes- 
sive bills  extending  the  term  of  expiring  copyrights.  These  now  run 
through  the  end  of  the  current  Congress,  and  are  scheduled  to  expire 
on  December  31,  1976.  The  urgent  problem  of  tape  piracy  was  also 
taken  care  of  through  separate  legislation. 

A  total  of  7  years  passed  between  House  passage  of  the  bill  in  1967 
and  the  resumption  of  its  active  consideration  in  the  Senate  subcom- 
mittee last  year. 

There  niay  have  been  other  reasons,  but  certainly  the  most  im- 
mediate cause  of  the  Revision  bill's  new  momentum  was  the  Supreme 
Court's  decision  in  CBt^  v.  Teleprompter^  in  March  1974,  holding 
that  under  the  1909  statute,  cablp  svstems  are  not  liable  for  copyright 
infringement  when  they  import  distant  signals. 

The  decision  was  followed  quickly  by  favorable  actions  in  the 
Senate  Judiciary  Subcommittee  and  full  committee  and,  after  a  brief 
referral  to  the  Commerce  Committee,  by  passage  in  the  Senate  on 
September  9, 1975,  by  a  vote  of  70  to  1. 

In  late  November,  your  subcommittee  held  a  hearing  which,  in  one 
respect,  was  a  forenmner  of  these  hearings.  I  testified  in  an  optimistic 
vein  at  that  time,  find  I  remain  hopeful  that  at  long  last  the  entire 
revision  measure  will  be  enacted  into  law  during  the  current  Conjrress. 

Mr.  Chnirman,  this  is  the  end  of  my  prepared  statement,  but  I 
would  also  like  to  identifv  seven  or  perhaps  eifrht  issues  which  will  cer- 
tainly com.e  before  you.  I  am  preparing  what  I  hone  will  be  a  spr>ond 
supplementary  report  of  thf-  register  of  copvrijrhts  which  w^ll  \\& 

j.^   „o- — 7n — pt.  1 8 


106 

available  to  you  and  also  to  the  subcommittee  by  the  time  you  need  to 
consider  the  bill  in  a  markup  sense. 

This  would  not  be  something  that  would  be  part  of  the  record  of 
this  hearing,  but  I  would  hope  that  I  might  have  a  chance  to  speak 
to  it  again  later  toward  the  end  of  these  hearings  or  perhaps  during 
the  markup  sessions. 

I  have  no  intention  now  in  trying  to  guess  what  the  other  witnesses 
are  going  to  say  or  in  arguing  anyone's  case. 

My  feeling  as  the  head  of  the  Copyright  Office  is  that  my  respon- 
sibility is  to  one  group  and  one  group  only,  and  that  is  the  group 
that  is  identified  as  the  sole  and  only  beneficiary  of  the  copyright  law 
of  the  United  States  under  the  Constitution,  the  authors  of  the 
so-called  writings.  In  other  words,  the  creators  of  copyrighted  works 
as  we  now  know  them. 

I  am  profoundly  of  the  belief  that  authors  in  this  country  have 
been  treated  shabbily  and  stingily  from  the  very  beginning  of  our 
copyright  system. 

And,  whatever  I  say  will  be  with  the  thought  that  the  situation 
of  authors,  not  only  as  the  creators  of  works  of  economic  value,  but 
as  something  that  is  infinitely  precious  to  our  country,  needs  to  be 
promoted. 

I  don't  think  this  has  been  done  effectively  under  previous  legisla- 
tion. I  will  return  to  this  point  later.  I  am  also  conscious  that  everyone 
else  besides  the  author  is  a  user  of  the  author's  work,  and  as  between 
users  there  may  be  arguments  which  are  extremely  persuasive  for  rea- 
sons unrelated  to  protection  of  the  author  but  in  some  respects  are 
irrelevant  to  the  essential  purpose  of  the  copyright  law. 

In  these  areas  I  think  compromises  liave  been  reached.  I  think  com- 
promises have  been  necessary  and  I  think  further  compromises  will 
be  made.  But  it  is  vitally  important  that  you  consider  the  effect  of  a 
])articular  provision  on  the  individual  author  and  not  primarily  of 
its  effect  on  an  economic  group  using  th&  author's  work  for  good 
or  for  ill. 

-  Turning  to  H.R.  2223,  as  it  now  stands,  I  will  try  to  give  you  an 
idea  of  its  framework  and  its  approach  and  pinpoint  a  few  of  the 
major  issues  that  you  will  be  hearing  debated  in  the  weeks  to  come. 

In  the  long,  I  am  afraid,  and  rather  boring  statement  that  I  made 
on  the  history  of  this  project,  I  did  want  to  make  a  point.  Obviously, 
there  is  a  long  history  behind  the  provisions  in  this  bill,  and  aside  from 
the  chairman,  all  the  members  of  your  subcommittee  are  coming  on  it 
as  new  legislation,  and  you  should  not  take  it  on  faith. 

No  one  in  their  right  mind  would  ask  you  to.  Wliat  I  am  trying  to 
say,  though,  is  that  your  predecessor  members  on  tlie  subcommittee 
went  over  most  of  these  provisions  in  vast  and  searching  detail.  And, 
to  a  remarkable  degree,  aside  from  a  few  of  the  widely-publicized 
issues  like  cable,  your  subcommittee  did  its  work  so  well  that  the 
basic  legislation  and  its  wording  have  become  generally  accepted. 

A  lot  of  things  are  not  issues  that  once  were,  because  what  you  did 
has  been  accepted.  I  think  you  will  realize  this  as  you  go  along. 

Very  simply,  the  present  law  is  outdated,  it  is  vague,  it  is  ambiguous, 
it  is  arbitrary,  and  results  in  a  great  deal  of  unproductive  work  both 
on  the  part  of  those  who  have  to  operate  under  it  and  on  the  part  of 
the  Copyright  Office. 


107 

It  is  comijletely  unlike  any  other  copyright  law  in  the  world  and,  in 
some  cases,  is  simply  a  historic  vestige.  We  have  in  this  country  a  dual 
system  of  copyright.  We  are  the  only  country  that  has  this.  We  have  a 
system  that  consists  of  common  law  copj'right  in  a  work  up  to  the 
point  of  first  publication.  At  that  point  the  work  either  falls  into 
the  public  domain  or  it  becomes  subject  to  statutory  copyright.  Pub- 
lication is  the  dividing  line  between  common  law  protection  and 
either  the  public  domain  or  the  limited  statutory  protection  of  the 
1909  law. 

I  don't  think  I  need  to  stress  that  the  concept  of  publication  has 
now  become  outdated  and  slightly  ridiculous.  We  are  now  in  an 
era  in  wliich  there  are  very  few  works  that  are  not  capable  of  being 
disseminated  by  media  other  than  print,  and  many  works  never  see 
print  and  are  disseminated  entirely  through  various  electronic  media. 

Tliis  system  has  resulted  in  peculiarities  and  injustices,  none  of 
these  less  than  the  monsti'ous  formalities  that  were  retained  and  added 
to  in  the  1909  law.  The  fact  is  that  if  you  publish  a  work,  publish  in  the 
print  sense,  without  a  coj:)yright  notice  in  the  correct  form  and  posi- 
tion, you  throw  your  work  into  the  public  domain  regardless  of  what 
your  intentions  were. 

The  revision  bill  attempts  to  deal  with  the  entire  copyright  situ- 
ation as  it  now  exists  and,  to  the  extent  that  it  is  possible  to  predict  it, 
into  the  next  century. 

It  provides  essentially  a  simple  system  which  is  nothing  novel.  This 
system  exists  everywhere  in  the  world.  It  is  a  system  of  a  term  based 
on  the  creation  of  the  work.  In  other  words,  when  the  author  figura- 
tivelv  lifts  his  pen  from  his  paper,  he  has  a  copyright  under  the  Fed- 
eral law  and  under  the  Constitution,  and  he  has  it  for  his  lifetime. 

There  is  no  possibility  that  it  would  expire  during  his  life,  which 
is  possible  and  in  fact  likely,  under  the  present  law.  The  international 
norm  for  the  term  of  copyright  is  the  life  of  the  author  plus  50  years. 
This  is  now  in  effect  in  a  large  majority  of  countries  that  have  copy- 
right laws. 

Mr.  DA>nLELS0N.  Mr.  Chairman,  I  should  like  to  inquire. 

Mr.  Kastexmeier.  The  gentleman  from  California. 

]Mr.  Daxielsox.  Ms.  Ringer,  you  just  mentioned  that  automatically 
under  the  bill  the  creator  has  a  lifetime  copyright.  Perhaps  as  we  go 
along  as  a  new  member  of  this  subcommittee,  I  will  have  my  present 
question  resolved. 

As  I  read  the  Constitution  it  authorizes  to  secure  for  limited  times 
and  in  the  absence  of  compelling  evidence  I  am  going  to  assume  we 
have  the  right  to  make  that  less  than  a  lifetime. 

Can  vou  explain  that  difference,  please  ? 

Ms.  Rix'GER.  There  is  nothing  unconstitutional  about  the  present 
law  which  provides  a  first  term  of  28  years  with  a  second  term  under 
a  renewal  system  of  28  yeare ;  and  as  I  mentioned  this  second  term  has 
been  extended  by  recent  enactments  of  Congress. 

There  is  nothing  unconstitutional  about  that.  At  the  same  time,  I 
would  find  mvself  unable  to  agree  with  any  argument  that  a  term 
based  on  the  life  of  the  author  and  a  finite  number  of  years  after  his 
death  was  not  a  limited  term. 

Obviously  people  die.  Evervone  dies  and  that  in  itself  is  a  limited 
term.  If  you  add  50  years  after  that,  you  are  definitely  creating  a 
limited  term. 


108 

I  think  a  better  argument  could  be  made  that,  under  the  present 
law,  when  you  lift  the  pen  from  the  paper  you  have  an  automatic 
common  law  copyright  that  is  perpetual  as  long  as  the  work  is  not 
"published." 

And  I  believe  there  might  be  some  question  as  to  whether  or  not 
this  is  constitutional.  That  there  are  many,  many  manuscripts  sitting 
over  in  the  Library  of  Congress  Mhich  may  well  be  subject  to  protec- 
tion for  generations,  centuries,  perhaps  even  eons. 

This  seems  against  the  public  interest.  One  of  the  arguments  for  a 
life-plus-50  term  is  that  not  only  does  it  provide  a  clearcut  cutoff  date 
but  the  date  is  the  same  for  eveiy  work  that  an  author  writes. 

In  other  words,  for  all  of  an  author's  works  under  a  life-plus-50 
system,  every  work  falls  into  the  public  domain  at  the  same  time 
and  you  don't  have  tliis  syst^^m  that  we  have  now  where  you  have  to 
do  a  lot  of  research  to  determine  when  a  work  falls  into  the  public 
domain. 

Mr,  Dantelson.  Suppose  Congress  would  enact  a  law  which  would 
limit  this  to  10  years,  which  might  very  well  be  less  than  a  lifetime? 

]Ms.  Ringer.  I  am  not  suggesting  that  the  system  in  the  bill  is  some- 
thing dictated  by  the  Constitution  or  anything  other  than  interna- 
tional norms  that  have  been  established  and  accepted  throughout  the 
rest  of  the  world. 

Whfit  I  am  sayinr;:  is  that  10  years  might  be  sufficient 

Mr.  Danielson.  I  am  only  talking  about  constitutionality.  If  we 
limited  a  copyright  to  10  years,  I  can  see  no  reason  why  that  would 
not  be  constitutional. 

j\Is.  Rtnger.  Nor  can  I. 

Mr.  Kastenmeier.  You  may  continue. 

Ms.  Ringer.  Thank  you.  The  present  'bill,  the  bill  we  are  now  con- 
sidering, H.R.  2223,  in  addition  retains  the  formalities  that  have  been 
bugaboos  under  the  present  law,  but  liberalizes  them  to  the  extent  that 
they  are  not  the  all-or-nothing  disasters  that  authors  face  now. 

In  other  words,  if  you  publish  your  work  without  a  notice  or  with 
an  incorrect  notice,  the  bill  allows  you  to  correct  your  mistake.  This  is 
true  of  other  formalities.  You  would  do  something  because  there  is 
a  reason  for  it  and  not  just  because  the  law  says  you  have  to. 

There  is  another  provision  which  I  am  doubtful  anyone  will  raise 
as  an  issue,  but  I  might  mention  in  the  context  of  the  general  content 
of  the  bill.  There  are  reforms  that  are  of  benefit  to  authors  and  artists 
with  respect  to  ownership,  in  addition  to  the  longer  term,  and  one  of 
the  m.ost  notable  of  these  is  in  section  203  of  the  bill. 

Instead  of  the  present  complex  and  rather  arbitrary  and  ca- 
pricious renewal  provisions,  it  allows  an  author  or  his  beneficiaries 
to  re-do  a  bad  deal.  In  effect,  the  present  law  was  intended  to  accom- 
plish that  result  but  has  been  most  imperfect  in  doing  this. 

Section  203  is  the  reversion  provision  which  basically  allows  an  au- 
thor, if  he  is  still  living  or  his  widow  and  children  and  grandchildren 
to  terminate  a  transfer  after  35  years  under  certain  circumstances. 

If  they  don't  do  that,  then  the  contract  continues.  If  they  do  do  it, 
then  tliev  have  nn  absolute  right  to  call  the  deal  to  a  halt.  In  my 
opinion,  despite  the  complexity  of  the  provisions,  it  is  a  real  plus  for 
authors. 


109 

Let  me  say  that  most  of  the  real  issues  that  you  are  going  to  be  con- 
sidering are  not  going  to  be  before  you  in  the  testimony.  The  real  issues 
are  the  reform  of  the  copyright  law  and  the  things  that  I  have  been 
talking  about. 

The  issues  that  you  will  be  hearing  about  are  very,  very  important 
to  authors,  among  other  groups,  but  they  are  almost  all  outside  the 
basic  guts,  if  you  will,  of  the  bill  itself. 

The  most  important  of  these  separate  issues  still  remains,  cable  tele- 
vision. There  were  some  hopeful  signs  in  the  early  seventies  that  an 
agreement  might  be  reached  on  this  issue,  but  they  turned  out  to  be 
somewhat  premature. 

Let  me  say  that  your  subcommittee  in  the  middle  sixties  was  a 
pioneer  on  this  issue.  It  hit  your  predecessors  cold.  There  had  been 
some  consideration  of  this  in  the  context  of  FCC  regulations  and 
Senator  Pastore  had  sponsored  a  bill  in  the  communications  area. 
But  in  terms  of  the  major  issues  raised  by  copyright  liability  for 
cable  operators,  no  one  before  you,  in  my  opinion,  had  come  to  grips 
with  the  ultimate  problems,  the  question  of  division  of  markets,  and 
the  importation  of  local  as  against  distant  signals  and  how  the  whole 
thing  might  be  wcrked  out  in  a  way  that  will  benefit  authors. 

Your  first  essay  on  this,  your  bill  that  was  put  before  the  House 
in  1967,  was  a  pioneering  effort,  and  no  one  should  be  ashamed  of  it. 

I  think  it  is  recognized  today  as  more  sophisticated  than  anyone 
could  have  expected  for  a  bill  at  that  time.  You  recognized  complex 
truths  about  this  important  public  issue  before  others  did  and  in  fact 
up  until  the  end  of  the  sixties,  people  were  still  asking,  what  is  cable 
television  ? 

This  issue,  I  believe,  is  finally  approaching  a  resolution,  although 
there  will  be  sharply  conflicting  testimony.  You  cannot  blame  people 
for  wanting  to  get  the  best  deal  they  can,  and  nothing  is  black,  white, 
or  even  gray  on  this  issue. 

I  will  answer  any  questions  that  you  have.  The  bill  itself  establishes 
a  compulsoiy  licensing  system  which  in  effect  is  based  on  this  prin- 
ciple, that  if  the  FCC  says  that  a  system  can  carry  a  signal,  then  the 
system  automatically  has  a  compulsory  license  to  cairy  that  signal 
and  the  copyrighted  i)rogram,  on  the  signal,  and  there  is  an 
elaborate  compulsory  licensing  procedure  and  a  complex  schedule  of 
fees  that  cable  systems  would  have  to  follow  and  pay  in  order  to 
insulate  themselves  from  liability  for  copyright  infringement. 

Essentially,  the  thing  is  basically  a  complete  compulsory  license. 
The  bill  that  you  reported  in  1967  did  not  have  a  compulsory  license 
for  CATV,  although  you  considered  it.  It  did  have  exemptions  and 
complete  liability.  It  was  black  and  white  and  no  gray. 

What  has  emerged  is  quite  different  and  yet  I  think  that  the  prin- 
ciples underlying  it  are  still  the  same  principles  and  I  think  the  result 
is  probably  an  acceptable  one. 

The  testimony  you  hear,  I  hope,  will  be  largely  over  the  details  of 
the  systein  and  not  whether  or  not  cable  ought  to  pay.  There  will  be 
some  testimony  to  this  effect,  but  it  seems  to  me  that  maybe  we  are 
beyond  that  point.  As  things  stand  now,  it  is  mainly  a  question  of 
how  they  pay  and  how  much. 

Another  issue  which  was  not  dealt  with  by  your  committee  at  all, 
although  you  heard  testimony  on  it,  was  that  of  library  photo- 


no 

copying  and  I  AYOuld  rank  this  as  tlie  second  most  important  issue  in 
the  bill. 

It  is  now  dealt  with  in  section  108  of  H.R.  222.3.  The  reason  that  you 
did  not  report  a  provision  on  this  subject  was  that  the  parties  re- 
spectively, and  for  absolutely  opposite  reasons,  agreed  that  the  bill 
should  not  address  the  problem. 

At  that  time,  and  it  was  before  the  full  impact  of  library  photo- 
copying and  photocopying  machines  generally  had  been  felt,  the  feel- 
ing on  the  part  of  the  copyright  owners  was  that  a  provision  specify- 
ing explicitly  what  the  liability  of  libraries  would  be  would  have  dele- 
terious effects,  since  the  owners  felt  that  they  had  complete  rights  and 
libraries  should  not  photocopy  at  all  without  paying.  The  library 
community  felt  just  the  opposite. 

I  think  it  was  a  mistake  for  the  bill  to  say  nothing.  Looking  back, 
I  think  that  some  provision  on  this  was  essential.  What  has  emerged 
in  section  108  has  been  fought  over  in  a  friendly  way  for  a  number 
of  years  in  the  Senate  context.  Essentially,  section  108  insulates 
libraries  from  liability  for  the  operation  of  coin-operated  machines 
on  their  premises  and  allows  them  to  photocopy  single  copies  of 
articles  and  excerpts  from  journals  and  books,  and  so  forth,  in  their 
collections.  If  it  is  clear  that  a  work  is  out  of  print,  they  can  make 
a  single  complete  copy  for  a  user.  Some  of  this  activity  can  be  carried 
out  for  inter-library  loan  purposes. 

The  big  issue  in  section  108  is  found  in  subsection  (g) ,  and  the  brief- 
ing paper  in  the  folder  that  I  will  give  you  goes  into  this  in  some 
detail. 

Under  the  final  version  that  emerged  in  the  Senate,  after  saying 
what  libraries  can  do,  the  bill  says  that  this  does  not  apply  to  multiple 
copying,  including  making  multiple  copies  one  at  a  time  and  it  does 
not  apply  to  single  copying  when  it  is  done  systematically. 

It  is  still  not  altogether  clear  in  anyone's  mind  what  systematic 
copying  means,  but  there  is  a  good  deal  of  concern  on  the  part  of 
librarians  as  to  the  chilling  effect  this  would  have  on  their  interlibrary 
loan  and  network  activities  which  are  ongoing  and  very  important  as 
a  public  issue. 

This  is  something  that  badly  needs  resolution.  You  passed  and  the 
President  did  sign  on  December  81  of  last  year,  a  bill  setting  up  a 
national  commission  that  has  as  part  of  its  mandate,  a  study  of  this 
problem. 

At  the  same  time  you  yourselves,  will  have  to  decide  what  section  108 
and  specifically  section  108(g),  says  on  this  particular  subject.  There 
are  other  activities  going  on  in  the  library  photocopying  arena  and 
you  will  hear  more  about  them  as  your  hearings  proceed. 

An  issue  of  great  immediate  importance  in  the  subcommittee  level 
right  now  is  the  liability  of  public  broadcasting.  In  1967  your  subcom- 
mittee agreed  that  instructional  television  should  be  given  an  ex- 
emption to  a  certain  extent  from  copyright  liability  and  during  the 
House  debates,  this  exemption  was  expanded. 

But  at  the  same  time  the  exemption  was  limited  to  instructional 
television.  Public  broadcasting  which  to  some  extent  enjoys  an  exemp- 
tion today  would  be  liable  under  H.R.  2228.  The  public  broadcasters 
and  their  representatives  have  been  seeking  a  very  broad  and  far- 


Ill 

reaching  compulsory  license  with  respect  to  the  use  of  copyrighted 
material  other  than  motion  pictures,  audiovisual  works  and  dramatic 
works. 

Their  concern  is  with  the  high  cost  and  difficulty  in  getting  clear- 
ances and  the  fact  tliat  their  budget  does  not  permit  them  to  do  the 
clerical  work  or  to  pay  extensive  royalties. 

The  Senate  subcommittee  staff  is  now  engaged  in  a  series  of  meet- 
ings trying  to  resolve  this  issue.  The  signs  are  relatively  hopeful  and 
perhaps  with  certain  amounts  of  good  will  and  cooperation,  you  will 
not  have  to  face  what  is  known  generally  as  the  Mathias  amendment, 
which  would  be  the  proposal  for  a  compulsory  license  covering  public 
broadcasting. 

Related  to  this  is  another  amendment  put  forward  in  the  last  Con- 
gress by  Senator  Bayli  which  would  extend  to  an  unlimited  amount 
the  number  of  recordings,  tapes,  that  an  instructional  broadcaster 
could  make  of  broadcasts  for  use  in  delayed  broadcasts  or  throughout 
the  whole  complex  of  instructional  broadcasting. 

In  my  opinion,  this  is  an  important  issue  but  it  is  not  as  important  as 
the  Mathias  amendment,  and  I  expect  the  two  will  be  considered 
together  whenever  they  get  to  you. 

In  the  area  of  jukeboxes,  a  very  difficult  compromise  was  achieved 
in  1967  and,  astonishingly,  it  has  held  up.  This  involved  a  compulsory 
license  for  jukebox  performances  with  a  payment  of  $8  by  jukebox 
operators  per  box  per  year,  the  payments  being  made  into  the  Copy- 
right Office  and  then  disbursed  under  the  procedure  provided. 

"As  a  result  of  the  cable  wars  in  the  Senate,  an  amendment  was  added 
w^hich  establishes  a  copyright  tribunal,  chapter  8  of  the  bill,  and  gives 
it  a  double  mandate.  First,  in  certain  cases,  the  tribunal  would  settle 
disputes  with  respect  to  the  disbursement  of  fees.  This  does  not  seem 
objectionable  to  most  people. 

But  in  addition  the  tribunal  would  be  called  upon,  through  what  in 
effect  is  a  compulsory  arbitration  system,  to  review  the  rates  of  the 
compulsory  licenses  "that  are  set  under  the  bill,  and  recommended 
changes  which  would  become  effective  unless  Congress  chose  to  wipe 
them  out. 

The  jukebox  operators  objected  to  $8  being  subjected  to  a  review, 
and  in  the  Senate  consideration  last  Septeml^er,  Senator  Hollincrs  put 
forvrard  an  amenrlment  that  took  the  jukebox  rate  out  from  under  the 
tribunal  review.  This  is  the  form  in  which  the  bill  now  appears. 

The  jukebox  rate  is  frozen  at  $8  and  it  is  not  subject  to  review.  I 
am  reasonabl}^  sure  you  will  hear  testimony  on  this  issue  in  the  davs 
to  come. 

I  believe  that  this  is  the  only  real  issue  remaining  with  respect  to  the 
jukebox  problem  which,  without  any  question,  was  our  biggest  head- 
ache in  the  early  sixties. 

The  other  economic  issue  that  you  will  hear  testiTuony  on  is  the 
amovuit  of  the  rate  for  the  old  traditional  compulsory  license  covering 
the  making  of  sound  recordings  of  musical  compositions. 

The  1909  law  was  a  pioneer.  It  adopted  the  first  compulsory  license 
in  any  field.  It  established  a  system  which  is  still  in  efTect  today  that 
allows  a  record  producer  to  make  a  record  of  a  copyrighted  musical 
composition  without  permission  if  he  follows  a  compulsory  licensing 
procedure  and  pays  2  cents  per  record  per  song. 


112 

One  can  wonder  how  2  cents  in  1909  could  possibly  still  be  viable 
today.  The  answer  is  probably  that  the  LP  resulted  in  the  unit  price 
going  from  2  cents  to  about  20  cents  or  in  some  cases  24  cents  as  a 
ceiling. 

But  at  the  same  time  it  has  been  argued  very  forcefully  that  the  2- 
cent  rate  is  infinitely  too  low,  even  considering  the  LP  and  the  other 
structural  changes  that  have  occurred  in  that  industry.  In  the  1965 
hearings,  there  was  massive  testimony  of  a  statistical  nature  dealing 
with  the  validity  of  the  2-cent  rate. 

Your  committee  agreed  to  21/^  cents  as  a  reasonable  rate  at  which  to 
peg  the  royalty. 

The  Senate,  facing  an  inflationary  curve  which  had  only  just  started 
in  1965,  raised  the  fee  to  3  cents  after  considering  at  one  point  a  3V^- 
cent  rate.  This  is  still  a  very,  very  sharp  controversy  and  I  think  you 
better  prepare  yourself  for  quite  a  lot  of  statistics  within  tlie  coming 
weeks. 

Finally,  and  the  seventh  issue  that  I  will  mention,  is  the  performance 
right  for  records  which  has  the — as  the  chairman  mentioned 


'^f~' 


Mr.  Kastenmeier.  May  I  interrupt  ?  I  have  five :  Cable  TV,  library 
photocopying,  liability  of  public  broadcasting,  jukeboxes,  public 
recording. 

Ms.  Ringer.  I  am  sorry.  I  accidentally  skipped  one,  the  question  of 
educational  use  other  than  broadcasting  and  it  will  be  the  subject  of 
one  of  your  days  of  testimony,  if  not  more.  In  the  1965  hearings,  you 
heard  a  good  deal  of  testimony  on  the  issue  of  classroom  photocopy- 
ing and  other  copying  by  teachers  of  copyrighted  material. 

This  was  put  forward  in  the  context  of  the  fair  use  provision  which 
is  now  section  107  of  the  bill  and  is  a  rather  general  statement  of  the 
doctrine  of  fair  use. 

The  question  was  whether  or  not  a  vague  provision  of  this  was  suf- 
ficient to  give  teachers  guidance  as  to  what  they  could  and  could  not 
do  with  respect  to  copyrighted  material,  except  when  they  had  at  their 
fingertips  a  good  deal  of  electronic  and  other  machinery  for  using  copy- 
righted materials  and  making  them  available  to  their  students  and 
pupils.  At  the  time,  you  sought  to  solve  this  problem  by  considering 
all  of  the  arguments  that  had  been  made  and  attempting  in  the  report 
to  lay  out  what  the  committee  regarded  as  fair  use  in  this  context. 

There  are  about  four  closely  packed  pages  still  in  the  report,  in  the 
Senate  version,  that  reflect  your  committee's  actual  drafting  of  what 
you  considered  the  scope  of  fair  use  to  be  in  this  context  of  classroom 
teaching. 

This  has  not,  I  think  it  is  fair  to  say,  satisfied  the  educational  rep- 
resentatives. I  believe  you  will  hear  proposals  on  this  issue  and  I  would 
list  this  as  one  of  the  seven  major  issues. 

An  adjunct  to  the  seven  is  the  copyright  royalty  tribunal  which  is 
an  issue  in  itself  but  arises  in  the  context  of  three  of  the  other  issues 
and  also  of  a  fourth,  wliich  is  the  seventh  of  the  major  issues,  the  per- 
formance right  in  records. 

The  testimony  in  1965  on  this  issue  was  very  interesting.  The 
record  producers  put  forward  a  very  strong  case  for  anti-piracy  legis- 
lation and  during  the  hearing,  after  testimony  by  performers  and  per- 
formers' representatives,  they  added  to  that  a  proposal  for  a  per- 
forming right  in  recordings.  That  would  mean  payment  under  some 


113 

sort  of  system  for  playing  records  on  disc  jockey  programs,  for  playing 
records  on  iukeboxesj  and  for  playing  records  on  cable  television  and 
music  systems. 

I  draw  a  distinction  at  this  point  between  the  music  on  the  record 
and  the  recording  itself.  The  music  is  already  protected  against  all  of 
these  uses  except  cable  and  jukebox  and  would  be  protected  against  all 
of  them  under  the  bill. 

The  stopgap  legislation  that  you  passed  in  1971  effective  in  1972, 
created  a  copyright  in  a  sound  recording  that  would  extend  to  any 
creative  elements  present  in  the  recording  but  limited  it  to  the  particu- 
lar situation  of  so-called  piracy,  unauthorized  duplication,  usually  on 
8-track  cartridges. 

This  legislation  which  was  temporary  in  its  1971  form  was  stand- 
ardized as  permanent  legislation  in  1974  and  is  now  part  of  the  copy- 
right law.  I  don't  regard  "piracy"  as  an  issue.  It  may  become  one. 

What  is  an  issue,  and  the  major  issue  in  the  Senate  consideration  of 
the  bill  in  1974,  was  the  proposal  that  a  performing  right  be  added 
to  the  law  that  would  allow  the  collection  of  royalties  for  the  playing- 
of  records  as  such  on  radio,  television,  cable,  jukeboxes,  and  so  forth. 

The  sponsor  of  this  legislation  in  the  Senate  was  Senator  Scott.  The 
bill  contained  this  provision  when  it  went  to  the  floor  of  the  Senate 
and  was  knocked  out  in  a  rather  heated  debate  during  that  con- 
sideration. 

Senator  Scott  has  reintroduced  the  proposal  as  a  separate  bill  and. 
Kepresentative  Danielson  has  introduced  the  same  bill.  In  the  Senate 
subcommittee  I  gather  there  will  be  hearings  on  the  Scott  bill  and  there 
is  a  possibility  that  it  might  be  joined  with  the  revision  bill. 

In  any  case  it  is  not  a  piece  of  separate  legislation  in  its  real  effect. 
I  think  it  is  something  your  subcommittee  should  consider  as  part  of 
the  overall  picture  of  general  revision. 

I  repeat,  however,  that  the  Danielson  bill  is  a  revision  of  the  1909 
law,  which  is  the  approach  that  is  being  taken  in  the  Senate  by  Senator 
Scott.  I  am  not  sure  I  have  made  that  clear. 

I  should  say  on  this  point  that  I  believe  very  strongly  that  sound 
recordings  and  the  performances  incorporated  in  them  are  creative 
works,  that  they  are  the  writings  of  an  author,  and  that  they  are  sub- 
ject to  copyright  protection  under  the  Constitution. 

There  is  no  doubt  about  this  in  my  mind  and  I  believe  that  your  ac- 
tion in  passing  legislation  that  recognizes  sound  recordings  as  copy- 
rightable and  protects  them  against  piracy  is  consistent  with  that 
view.  It  is  not  whether  they  should  be  protected  but  how  they  should 
be  protected,  whether  protection  should  go  beyond  piracy  to  inchido 
tlie  payment  of  royalty  for  performances  by  various  media.  In  prin- 
ciple, I  support  that,  too. 

I  think  that  the  ways  of  working  it  out  need  to  be  carefully  con- 
sidered. The  proposal  in  the  old  section  114  in  the  Senate  version  in 
1974  had  problems  of  a  practical  nature,  but  I  am  not  sure  that  they 
are  insuperable. 

These  are  the  seven  major  issues  and  much  of  the  testimony  you  will 
hear  will  be  centered  around  them  and  will  be  economic  in  nature.  In 
addition  to  this  you  will  hear  discussion  at  various  points  of  the  manu- 
facturing clause,  section  601  of  the  bill,  and  which  is  a  disgraceful 
vestige,  in  my  opinion,  of  19th  century  protectionist  thinking. 


114 

The  manufacturing  clause  was  added  in  the  1891  Copyright  Act  as 
the  price  the  printers  exacted  for  allowing  copyright  to  be  extended 
to  foreign  authors.  They  had  been  getting  a  free  ride  up  to  that  point 
and  they  insisted  that,  as  a  price  for  allowing  Dickens  and  Tolstoy  to 
be  protected  in  this  country,  the  works  could  not  be  copyrighted  un- 
less they  were  printed  here. 

This'provision,  which  was  bad  legislation  to  begin  with,  has  become 
eroded  over  the  years  and  in  1965  it  was  eroded  some  more.  The  Reg- 
ister's initial  recommendation  was  that  it  be  done  away  with.  It  became 
apparent  that  it  could  not  be  knocked  out  of  the  bill  without  a  major 
fight. 

As  a  result,  it  has  been  retained  with  a  considerably  narrowed  scope. 
I  believe  that  the  principal  arguments  you  will  hear,  perhaps  tomorrow 
and  in  succeeding  days,  involve  the  fact  that  we  are  now  equating 
Canada  with  the  United  States  in  terms  of  the  place  of  manufacture, 
and  this  raises  a  host  of  technical  questions  which  I  won't  go  into.  I 
think  there  has  been  accommodation  among  the  parties  and  there- 
fore it  is  unlikely  you  will  find  people  attacking  the  manufacturing 
clause  out  of  hand,  as  I  have  just  done. 

Yet  personally  I  find  it  very,  very  bad  legislation  and  would  like  to 
see  it  gone.  It  may  not  be  practical  to  do  that. 

I  believe  you  will  also  hear  testimony  from  artists  and  their  repre- 
sentatives with  respect  to  the  unsatisfactory  situation  of  artists  under 
the  present  law. 

I  think  this  is  a  valid  argument.  The  revision  bill  would  help  artists 
but  probably  would  not  go  as  far  as  they  would  like  it  to. 

Mr.  Kastenmeier.  When  you  say  '"artists,"'  whom  do  you  have  in 
mind  ? 

Ms.  liiNOER.  Painters,  sculptors,  graphic  artists,  and  designers.  I 
wanted  to  mention  the  design  bill.  Title  II  of  the  bill  is  a  completely 
separate  piece  of  legislation  which  was  conjoined  with  the  revision; 
bill  in  the  Senate  more  or  less  as  legislative  expediency  at  the  time. 

The  two  prol)lems  are  related  and  I  have  no  objection  to  them  being 
addressed  together.  I  think  this  is  probably  a  good  idea. 

But  you  will  find  differences  in  approach  between  them,  and  a  bridge 
provision  in  section  118  deserves  your  attention.  I  think  the  design  bill 
is  a  good  l)ill  and  it  deserves  to  be  passed  whether  as  a  title  II  of  this 
overall  omnibus  revision  or  separately. 

It  is  then  unclear  whether  there  wnll  be  a  debate  over  it.  There  has 
not  been  in  the  Senate. 

There  are  other  issues.  There  is  a  proposal  that  would  exempt  a 
proprietor  of  a  ballroom  or  similar  place  of  entertainment  from 
liability  and  place  the  liability  on  the  performing  organization. 

There  are  undoubtedly  dozens  of  other  little  or  perhaps  not  so  little 
issues  that  will  arise  during  these  hearings.  But  I  have  tried  to 
give  vou  the  overall  framework  of  what  you  will  be  hearing,  and  in  my 
opiiiion  you  do  not  need  to  go  back  to  ground  zero. 

I  don't  thin]<:  you  need  to  start  at  the  beginning.  I  think  you  can 
consider  many  issues  settled,  thanks  to  your  efforts  in  the  sixties.  Your 
prol^lem  is  not  a  simple  one  but  I  think  it  is  something  that  is  solvable 
and  I  am  extremely  encouraged  by  the  scheduling  of  hearings  and  the 
general  atmosphere  that  I  find  here  today. 

Thank  you,  Mr.  Chairman. 


115 

]Mi-.  Kastenmkieu.  Tliank  you.  Ms.  Ringer,  for  a  very  comprehensive 
review  historically  of  the  issues  involved  in  copyright  law  revision. 

The  Chair  will  state,  that  at  our  next  hearing,  we  will  have  Govern- 
ment represented  by  three  other  entities,  the  Justice  Department,  the 
Commerce  Department,  and  the  State  Department,  and  to  some  extent, 
other  aspects  will  be  more  deeply  explored  with  reference  to  the  bill  in 
terms  of  its  administration  from  the  governmental  point  of  view. 

I  haA^e  at  this  point  just  a  couple  of  questions  and  then  I  would  like 
to  yield  to  my  colleagues.  From  time  to  time  there  have  been  argu- 
ments made  that  we  could  leave  something  out  of  the  bill. 

Indeed,  from  time  to  time,  certain  areas  have  not  been  covered  in  the 
bill.  But  is  it  not  the  case,  this  being  a  unitied  code,  that  the  operation 
of  the  bill  does  apply  whether  or  not  we  specifically  deal  with  a  subject 
or  not?  That  is  to  say,  all  we  have  done  in  a  sense  is  by  our  nonstate- 
ment,  to  leave  the  matter  somewhat  unresolved  in  terms  of  potential 
litigation? 

Therefore,  we  can  really  not  fail  to  deal  with  an  issue.  It  will  be 
dealt  with  one  way  or  the  other.  The  code,  title  17,  will  cover  it.  So  we 
have  made  a  conscientious  decision  even  by  omission.  Do  you  agree  ? 

Ms.  PiiNGEK.  I  would  agree.  In  1909  there  was  probably  no  intention 
to  protect  sound  recordings.  I  think  the  legislative  history  would  bear 
this  out  although  it  is  ambiguous.  In  the  early  1970's  there  was  an  in- 
crease in  record  piracy  because  of  the  increasing  popularity  of  8-track 
cartridges.  As  a  result,  there  was  a  major  effort  to  g>et  States  to  pass 
legislation  or  to  enforce  common  law  protection  of  what  were  clearly, 
in  a  layman's  sense,  published  works  because  of  the  lacuna  in  the  1909 
statute.  There  was  no  explicit  protection.  This  issue  went  all  the  way  to 
the  Supreme  Court  and  the  Supreme  Court  upheld  the  validity  of  a 
State  criminal  statute  against  record  piracy  on  the  ground  that  Con- 
gress had  not  preempted  that  protection  since  it  had  failed  to  act. 

You  may  not  even  be  refraining  deliberately  from  giving  protection, 
which  I  think  was  the  thrust  of  your  question.  You  may,  in  fact,  be 
handing  them  State  protection  which  is  variable  and  inconsistent  in 
many  cases  and  has  a  lot  of  imdesirable  features.  These  were  the  very 
imdesirable  features  that  INIadison  mentioned  in  the  "P'ederalist 
Papers''  when  he  was  defending  the  copyright  clause  in  the 
Constitution. 

Mr.  Kastenmeier.  By  virtue  of  passing  this  bill,  we  will  deal  with 
every  issue.  Whethei"  we  deal  with  it  completely  or  not  for  the  purpose 
of  resolving  the  issues  involved  is  the  only  question,  not  whether  it  has 
dealt  with  the  four  corners  of  the  bill  because  the  four  corners  of  the 
bill  will  presume  to  deal  with  everything  in  copyright. 

"Ms.  Ringer.  I  quite  agree,  Mr.  Chairman. 

]Mr.  Kastexmeier.  One  of  the  apprehensions  that,  as  we  develop 
this  bill  and  probably  future  amendments  to  it,  is  that  by  creating 
rights  and  extending  rights,  we  might  make  the  law  very  compli- 
cated given  the  present  state  and  future  state  of  society,  that  the 
business  of  getting  clearances  and  knowing  what  levels  of  rights  are 
really  being  accorded  may  get  extraordinarily  difficult,  particularly 
for  users. 

What  is  your  comment  to  that  ? 

Ms.  RixGER.  This  has  been  a  concern  to  us  in  the  Copyright  Office, 
too.  There  are  some  situations — and  I  think  cable  is  one  of  the  best 
examples  I  have  ever  seen — that  are  so  intrinsically  complicated  that 
you  cannot  deal  with  them  in  a  broad-brush  way. 


116 

I  think  that  your  efforts  to  deal  with  the  CATV  problem  in  1965 
which  were  attacked  as  being  terribly  complicated  are  extraordi- 
narily clear  and  simple  compared  to  the  FCC  regulations  which  in 
effect  did  the  same  thing. 

At  the  same  time,  I  am  very  disturbed  about  the  increasing  reliance 
on  compulsory  licensing  to  resolve  difficult  conflicts.  The  law  is  so  out 
of  date  that  tliere  are  now  areas  in  which  authors  are  simply  not  being 
protected  at  all.  In  these  areas  there  have  built  up  user  interests  that 
are  so  strong  and  so  deeply  embedded  that  to  impose  outright  copy- 
right liability,  with  no  if  s,  and's  or  but's,  would  create  very  serious 
problems. 

Because  the  1909  law  has  been  allowed  to  become  hopelessly  out  of 
date,  you  have  to  compromise,  and  the  obvious  compromise  in  many 
of  these  cases  is  compulsory  licensing. 

When  you  begin  this  game  in  areas  now  protected  under  copyright, 
where  the  protection  already  exists  and  licensing  arrangements  have 
already  been  made,  then  I  think  you  are  doing  something  very  drastic, 
and  the  ultimate  result  could  be  substantial  changes  in  the  character  of 
copyrights  that  might  actually  make  it  harmful  to  the  author  rather 
than  helpful. 

Mr.  Kastenmeier.  Now,  I  would  like  to  yield  to  the  gentleman  from 
California,  Mr.  Wiggins. 

Mr.  Wiggins.  Following  you  will  be  many  witnesses  who  will  reflect 
their  economic  interests  and  you  may  be  one  of  the  few  witnesses  who 
do  not  have  an  obvious  economic  stake  in  this  bill. 

Can  you  help  me  with  some  of  the  problem  policy  issues  which  may 
pervade  all  of  these  sections  of  the  bill  ?  I  think  I  can  understand  a 
person's  economic  ax.  I  respect  their  points  of  view.  But,  I  am  not 
sure  I  really  understand  the  public  policy  issues  involved  and  I  would 
like  your  assistance. 

Ms.  Ringer.  The  1909  Joint  Congressional  Committee,  in  its  report 
No.  2223,  made  a  statement  which  has  been  quoted  many  times  and 
which  I  agreed  with  at  one  time,  but  which  I  have  ceased  to  agree  with. 

I  will  paraphrase  it.  It  was  that  copyright  is  not  for  the  protection 
of  the  author,  but  for  the  public  and  that  where  the  author's  interests 
and  the  public's  interests  conflict,  the  author  must  yield. 

This  sounds  great  and  for  a  long  time,  I  felt  that  this  was  probably 
correct.  But,  the  more  I  have  looked  upon  the  status  of  authors  in  this 
country  and  the  fact  that  the  public  interest  is  badly  served  when 
authors  are  badly  served,  I  have  felt  that  too  often  the'public  interest 
has  been  identified  with  economic  users  rather  than  with  authors. 

In  recent  years,  partly  as  a  result  of  this  whole  revision  exercise,  I 
have  been  trying  to  gage  individual  issues  in  terms  of  their  impact 
upon  creativity  and  authorship,  which  I  consider  the  ultimate  public 
interest. 

The  Constitution  speaks  of  the  desirability  of  promoting  the  prog- 
ress of  science  and  useful  arts,  science  in  the  broad  sense  of  learning  or 
knowledge,  by  offering  protection  for  limited  times  to  authors  and 
inventors. 

It  seems  to  me  that  it  is  this  protection,  tlie  exclusive  rights  that  are 
supposed  to  be  granted  to  authors,  that  is  the  ultimate  public  interest 
that  the  Constitution  and  its  drafters  were  thinking  about. 


117 

I  do  not  think  that  this  has  ever  been  fully  or  even  partly  realized 
in  any  copyright  law  we  have  had  in  our  entire  history. 

Mr.  Wiggins.  I  was  wondering  if  you  would  place  the  dissemination 
for  the  benefit  of  the  public — and  I  might  add  for  the  profit  of  the 
disseminators — on  an  equal  plane  with  the  protection  of  the  authors 
and  inventors  ? 

Ms.  Ringer.  Yes.  I  think  that  the  system  that  we  have  had  has  been 
based  on  the  desire  to  induce  dissemination,  make  works  available 
to  the  public  by  offering  protection  to  authors. 

I  think  that  this  system  is  now  subject  to  some  difficulty  because  of 
the  fact  that  the  new  technology  has  made  it  an  absolute  detriment  to 
disseminate.  In  other  words,  an  author  in  certain  situations  who  lets 
the  bird  out  of  the  cage,  finds  that  there  is  no  way  to  regain  it,  that 
once  he  has  made  a  tape  and  it  has  been  played  over  the  radio  or  tele- 
vision, he  finds  suddenly  it  is  being  pirated  or  made  in  duplicates  all 
over  the  country. 

It  is  very,  very  difficult  in  that  situation  for  him  to  realize  any 
economic  gain  or  reward  for  his  creation  and  there  may  be  situations 
in  which  he  would  prefer  to  keep  his  biid  in  its  cage,  so  to  speak. 

I  am  speaking  in  terms  of  music,  but  I  think  the  example  is  better 
in  some  areas  where  there  is  a  more  realistic  possibility  of  exercising 
complete  control. 

The  task  of  your  committee,  as  I  see  it,  is  to  try  in  some  way  to 
evaluate  the  impact  of  the  new  dissemination  media  on  the  basic  task 
of  giving  authors  a  reasonable  return  and  inducing  them  to  let  the  work 
go  out  to  the  public. 

We  are  in  really  big  trouble  on  this,  in  my  opinion,  at  the  moment. 

Mr.  Wiggins.  Thank  you. 

Thank  you,  Mr.  Chairman. 

Mr.  Kastenmeier.  The  gentleman  from  California,  Mr.  Danielson  ? 

Mr.  Danielson.  I  wish  to  thank  Ms.  Ringer,  JNIr.  Lorenz,  and 
IMr.  Kaminstein  for  their  contribution  this  morning.  It  was  most 
helpful. 

Will  iVIs.  Ringer  be  back  again  ?  I  have  a  couple  of  questions. 

Mr.  Kastenmeier.  As  a  matter  of  fact,  yes.  We  will  have  Ms.  Ringer 
back  perhaps  at  an  earlier  time  than  later  because  it  is  obvious  today 
we  will  not  have  time  for  extended  examination  on  a  number  of  issues 
which  have  been  raised. 

Mr.  Danielson.  All  right. 

Beyond  that,  I  want  to  thank  my  colleague,  Mr.  Wiggins,  for  raising 
the  point  he  just  did  raise  and  for  your  response  to  it.  It  was  directly 
responsive  to  one  question  in  my  mind.  As  I  read  the  Constitution,  the 
justification  for  copyright  in  the  first  place — and  the  only  one  in  the 
Constitution — is  to  promote  the  progress  of  science  and  useful  arts. 

So  far  as  I  am  concerned,  any  legislation  which  I  will  support  will 
have  to  be  calculated  to  achieve  that  end,  to  promote  the  progress  of 
science  and  useful  arts. 

The  copyright  is  the  means  through  which  that  end  is  accomplished 
and  that  will  be,  I  believe,  the  general  rule  that  I  am  going  to  follow 
hei'e. 

I  wish  to  thank  Mr.  Kaminstein  and  commend  him  for  the  magnifi- 
cent perception  of  the  legislative  process  which  is  set  forth  in  the  next 


lis 

to  the  last  paragraph  of  his  statement,  and  of  the  responsibility  of  the 
Congress  in  meeting  that  process. 

I  wish  every  legisLator  would  include  that  as  part  of  his  morning 
devotions  or  ablutions. 

Mr.  Kastenmeier.  The  gentleman  from  Massachusetts,  Mr.  Drinan  ? 

Mr.  Drinan.  I  want  to  welcome  Ms.  Ringer  back.  I  am  sorry  I  had 
another  subcommittee.  That  subcommittee  was  about  bankruptcy,  and 
the  Congress  has  been  even  more  apathetic  about  bankruptcy  than 
about  copyright  laws. 

I  thank  you  for  your  appearance  here  today  and  I  wish  to  thank  the 
other  two  witnesses. 

Thank  you. 

Mr.  Kastenmeier.  The  gentleman  from  New  York,  Mr.  Pattison? 

Mr.  Pattison.  I  have  no  questions. 

Mr.  Kastenmeier.  I  am  astounded.  [Laughter.] 

Probably  it  is  the  better  pait  of  wisdom,  since  the  House  is  in  ses- 
sion, to  terminate  at  this  period  and  to  thank  all  three  witnesses, 
Mr.  Lorenz,  Mr.  Kaminstein,  and  Ms.  Ringer,  for  ilhuninating  the 
subcommittee  and  updating  it  on  the  subject  of  copyright. 

Particularly  what  Ms.  Ringer  has  contributed  this  morning  will 
raise  a  number  of  other  issues,  other  questions,  with  which  I  am  in 
entire  agreement  with  the  gentleman  from  California,  Mr.  Danielson, 
on  and  suggest  further  colloquy. 

Rather  than  get  into  those  thickets  at  this  hour,  T  think  we  will  let 
the  morning  testimony  stand.  It  does  sound  not  only  hopeful,  but  gives 
us  the  frame  of  reference  for  now  proceeding  hopefully  to  a  success- 
ful end. 

In  conclusion  the  Chair  desires  to  again  thank  our  witnesses  this 
morning. 

Mr.  Danielson.  Is  there  any  chance  of  getting  a  larger  room  for 
tomorrow  ?  There  are  a  lot  of  people  standing  up  back  there  that  would 
rather  sit. 

Mr.  Kastenmeier.  We  will  do  what  we  can  do  in  that  regard.  The 
committee  is  very  impressed  by  the  public  interest.  We  will  try  to  bring 
additional  chairs  in  and  accommodate  those  standing  today. 

Tomorrow  we  wnll  have  representatives  of  the  Justice  Department, 
Commerce  Department,  and  the  State  Department  on  the  question  of 
general  copyright  revision.  Until  then,  the  subcommittee  stands 
adjourned. 

[Whereupon,  at  12 :10  p.m.,  the  subcommittee  adjourned,  to  recon- 
vene at  10  a.m.,  Thursday,  May  8, 1975.] 


COPYRIGHT  LAW  REVISION 


THURSDAY,   MAY   8,    1975 

House  of  Represextatives, 
Subcommittee  on  Courts,  Civil  Liberties, 

AND  the  Administration  of  Justice 
OF  the  Committee  on  the  Judiciary, 

Washington^  D.C. 

The  subcommittee  met,  pursuant  to  call,  at  10 :10  a.m.  in  room  2226, 
Rayburn  House  Office  Building,  Hon.  Robert  W.  Kastenmeier  [chair- 
man of  the  subcommittee]  presiding. 

Present :  RepresentatiA'es  Kastenmeier,  Danielson,  Drinan,  Badillo, 
Pattison,  and  Railsback. 

Also  present :  Herbert  Fuchs,  counsel ;  Bruce  A.  Lehman,  counsel ; 
and  Thomas  E.  Mooney,  associate  counsel. 

jNIr.  Ivastenmeier.  The  committee  will  come  to  order.  This  morning 
is  the  second  morning  devoted  to  hearings  on  the  subject  of  H.R.  2223 
and  other  bills  relating  to  the  general  revision  of  the  copyright  law. 

"We  are  pleased  to  have  as  our  first  witness  this  morning,  represent- 
ing the  State  Department,  Deputy  Assistant  Secretary  for  Commercial 
Affairs  and  Business  Activities,  the  Honorable  Joel  W.  Biller.  Mr. 
Biller  is  accompanied  by  Philip  R.  Trimble,  Assistant  Legal  Adviser 
for  Economic  and  Business  Affairs. 

Is  Mr.  Biller  here  ? 

Mr.  Biller.  Yes. 

Mr.  Kastenmeier.  We  will  be  happy  to  hear  what  you  have  to  say. 

TESTIMONY  OF  JOEL  W.  BILLER,  SECRETARY  FOR  COMMERCIAL 
AFFAIRS  AND  BUSINESS  ACTIVITIES,  DEPARTMENT  OF  STATE 

Mr.  Biller.  Thank  you,  ]Mr.  Chairman.  Mr.  Trimble  is  sitting  on 
my  right  and  Mr.  Bushnell  is  on  my  left. 

I  greatly  appreciate  having  the  opportunity  to  present  the  views 
of  the  State  Department  on  H.R.  2223,  for  the  General  Revision  of 
the  Copyright  Law,  title  17  of  the  United  States  Code,  and  for  other 
purposes.  Although  we  take  exception  to  one  section  in  this  bill,  the 
Department  otherwise  supports  the  enactment  of  this  important 
legislation. 

As  the  committee  knows,  the  present  U.S.  copyright  law  is  essen- 
tially the  same  as  the  act  of  1909.  Since  that  date,  great  advances  have 
been  made  in  teclinology  and  techniques  for  communicating  printed 
matter,  visual  images,  and  recorded  sounds.  These  advances  have 
created  new  industries  and  methods  for  the  reproduction  and  dissemi- 
nation of  copyrighted  works. 

(119) 


120 

The  State  Department  believes  that  a  modernization  of  the  copy- 
right law  to  take  into  account  the  important  technical  advances  in 
the  copyright  field  is  in  the  interest  of  both  the  authors  and  the  users. 

My  comment  will  be  directed  to  those  sections  of  H.R.  2223  which 
relate  to  the  conduct  of  our  foreign  relations  and  therefore  are  of 
special  interest  to  the  Department  of  State.  Tliese  sections  are  the 
following:  Section  104  regarding  subject  matters  of  copyright  and 
national  origin ;  section  302  on  the  duration  of  protection ;  and  section 
601  on  restrictions  against  importation  of  certain  copyrighted  mate- 
rials from  other  countries. 

Section  104  is  relevant  to  our  international  interests  in  that  it  speci- 
fies the  occasions  when  foreign  works,  that  is,  works  produced  by 
nationals  of  countries  other  than  the  United  States,  will  be  granted 
U.S.  copyright  protection.  Essentially,  section  104  continues  the  reci- 
procity approach  contained  in  the  present  law  with  respect  to  pub- 
lished works;  that  is,  the  United  States  gives  foreign  citizens 
protection  equal  to  that  given  by  the  foreign  countiy  to  U.S.  citizens. 
It  is  tlius  consistent  with  generally  accepted  international  practice  in 
most  countries  and  has  the  support  of  the  Department. 

Of  particular  relevance  to  the  Department's  interests  is  section  104 
(c)  ("Subject  Matter  of  Copyright:  National  Origin")  which  deals 
with  the  possibility  that  a  foreign  government  might  take  action  in 
the  U.S.  courts  to  divest  its  citizens  or  authors  of  rights  to  their  works 
or  to  block  publication  of  their  works  within  the  United  States.  We 
do  not  have  any  evidence  that  an  action  of  this  nature  is  likely  to  occur. 
But  if  it  did,  it  would  represent  undesirable  official  interference  with 
the  freedom  of  individual  expression,  and  we  therefore  believe  that  it 
should  be  guarded  against. 

It  is  important  to  note  that  the  international  copyright  system 
embodied  in  the  I^niversal  Copyright  Convention  is  intended  to 
"insure  the  respect  for  the  rights  of  the  individual  and  encourage  the 
development  of  literature,  the  sciences,  and  the  arts."  These  convention 
obligations  should  be  kept  in  mind  with  respect  to  any  action  to 
suppress  free  communication  in  the  United  States  of  ideas  and  litera- 
ture unacceptable  to  authorities  of  another  member  state  of  the 
convention. 

We  understand  that  other  U.S.  Government  agencies  are  drafting 
language  to  accomplish  the  purpose  of  section  104(c)  in  a  technically 
different  manner.  We  have  not  reviewed  these  proposals  and  there- 
fore are  unable  to  express  our  opinion  on  them.  However,  we  sup- 
port the  aim  of  appropriately  drafted  legislation  that  would  deny 
effect  in  U.S.  courts  of  a  foreign  nation's  laws  or  practices  designed 
to  deprive  the  authors  of  that  country  of  the  rights  to  publish  and 
protect  their  literary  and  artistic  works  in  the  United  States.         , 

Section  302  deals  with  the  duration  of  copyright,  that  is,  term  of 
protection.  It  is  one  of  the  most  important,  if  not  the  most  im]:)ortant 
provision  in  the  copyright  revision  bill.  Essentially,  section  302(a) 
provides  for  a  copyright  term  of  the  life  of  the  author  plus  50  years 
after  his  death.  Such  a  term  of  protection  would  be  more  in  line 
with  the  practice  of  most  countries  of  the  international  copyright 
community  and  would  also  remove  a  major  obstacle  to  the  possible 
adherence  of  the  United  States  to  the  Berne  Convention  for  the  Pro- 
tection of  Literary   and  Artistic  Works.   Our  membership  in  the 


121 

Berne  Convention  would  facilitate  and  simplify  international  copy- 
right protection  for  U.S.  nationals.  Therefore,  we  strongly  support 
the  term  of  copyright  protection  proposed  in  section  302. 

Section  601  concerns  the  so-called  "manufacturing  clause"  which  is 
designed  basically  to  protect  the  U.S.  printing  industry.  As  you  know, 
this  section  prohibits  the  importation  into  or  the  distribution  within 
the  United  States  of  English  language  books  authored  by  U.S.  na- 
tionals living  in  the  United  States,  or  domiciliaries,  unless  the  copies 
are  produced  in,  or  are  made  from  type  set  in,  or  plates  made  in,  the 
United  States  or  Canada. 

We  are  pleased  that  section  601  would,  on  the  whole,  move  in  the 
direction  of  liberalizing  the  present  manufacturing  clause.  For  ex- 
ample, a  violation  of  the  manufacturing  clause  as  regards  a  book 
would  not  ailect  tlie  right  of  the  copyright  proprietor  to  authorize  a 
motion  picture  version  or  other  use  of  the  book.  It  would  merely 
affect  enforcement  of  copyrights  with  respect  to  publication  as  a 
book.  Further,  the  number  of  copies  manufactured  abroad  that  may  be 
imported  has  been  increased  from  1,500  to  2,000. 

Despite  this  liberalization,  however,  section  601  would  continue 
the  protectionist  features  of  the  manufacturing  clause.  This  kind  of 
protection  is  fundamentally  inconsistent  with  basic  U.S.  policy  in 
international  trade.  For  several  decades  we  have  pursued  a  policy  of 
reducing  tariffs  and  nontariff  barriers  in  the  interest  of  promoting  an 
open  international  economic  system.  We  believe  that  the  broad  trading 
interests  of  tlie  United  States  and  its  people  continue  to  be  the  best 
serv^ed  by  a  general  reduction  of  trade  barriers  including  nontariff 
barriers.  This  is  the  policy  we  are  carrying  forward  in  the  current 
multilateral  trade  negotiations  being  undertaken  in  Geneva  under 
the  authority  of  the  recently  enacted  Trade  Act. 

During  this  round  of  negotiations  attention  will  be  focused  par- 
ticularly on  nontariff  barriers,  and  one  of  our  major  negotiating 
objectives  will  be  to  reduce  or  eliminate  nontariff  barriers  of  other 
countries  which  restrict  U.S.  trade.  We  believe  that  it  is  important 
to  note  this  inconsistency  in  considering  the  continuation  of  the  manu- 
facturing clause. 

Furthermore,  the  exception  for  Canada  introduced  by  tliis  bill  into 
the  manufacturing  clause  would  violate  our  obligations  under  the 
GATT  and  various  bilateral  treaties.  The  United  Kingdom  has  pro- 
tested and  we  expect  that  other  foreign  countries  which  are  being 
discriminated  against  by  this  measure  will  protest,  thereby  intro- 
ducing an  element  of  discord  and  potential  retaliation  into  our  rela- 
tions with  those  countries. 

Specifically,  Mr.  Chairman,  the  exception  would  violate  our  obli- 
gations under  article  XIII  of  the  GATT  which  requires  nondiscrim- 
inatory application  of  quantitative  restrictions,  and  the  United  States 
would  be  obligated  to  seek  a  special  waiver  from  the  GATT  contract- 
ing parties  to  permit  this  exception.  This  procedure  would  be  particu- 
larly undesirable  at  this  time  in  view  of  the  opening  of  the  new 
round  of  multilateral  trade  negotiations  at  Geneva.  The  exception 
would  also  violate  commitments  in  various  FCN  treaties,  which  we 
have  concluded  with  most  of  the  other  industrialized  nations. 

These  treaties  normally  impose  obligations  on  the  United  States  to 
notify  and  consult  before  it  introduces  nontariff  barriers  on  important 

57-786— 76— pt.  1 9 


122 

products  of  the  other  country,  and  forbids  the  prohibition  of  the 
other  country's  products  unless  the  product  of  third  countries  are 
similarly  prohibited. 

In  conclusion,  the  Department  of  State  believes  that  the  updating 
of  the  U.S.  copyright  law  is  most  desirable,  and  we  support  the  enact- 
ment of  H.Ii.  2223.  A  modernization  of  the  copyright  law  to  take 
into  account  the  important  technological  advances  in  the  copyright 
field  is  in  the  interest  of  all  members  of  the  copj^right  community.  It 
is  also  important  in  bringing  the  United  States  in  step  in  copyright 
•with  the  other  principal  countries  of  the  world.  We  hope,  Mr.  Chair- 
man, that  the  objections  to  the  bill  that  I  have  noted  will  be  given 
serious  consideration  by  your  committee. 

Thank  you,  Mr.  Chairman. 

Mr.  Kastenmeier.  Thank  you,  Mr.  Biller.  I  appreciate  your  state- 
ment and  your  appearance.  In  the  past,  we  have  had  ]Mr.  Harvey  Win- 
ter from  time  to  time  representing  the  De|)artment  and  we  know  him 
well. 

May  I  ask  as  to  what  extent  does  your  Department  coordinate  its 
view  with  respect  to  the  legislation  under  consideration  with  either 
the  Copyright  Office,  the  Department  of  Commerce  or  the  Department 
of  Justice  ? 

Is  there  any  particular  coordination  of  views  with  respect  to,  say, 
representing  the  view  of  the  Administration  on  the  bill? 

Mr.  BiLT.ER.  Yes,  Mr.  Chairman,  I  think  there  is.  We  maintain  daily 
contact  Avith  other  agencies  on  the  international  aspects  of  the  bill. 
We  are  aware  of  the  views  of  the  other  agencies  and  certainly  on  an 
informal  basis  there  is  a  great  deal  of  consultation. 

Mr.  Kastenmeier.  You  indicated  you  opposed  one  section,  referring 
to  the  manuf actuiing  clause  section. 

]\fr.  Biller.  Yes,  sir. 

Mr.  Kastenmeier.  But,  you  indicated  a  reservation  about  section 
104(c).  I  wonder  whether  you  could,  by  using  a  hypothetical,  demon- 
strate precisely  the  effect  of  that  in  terms  that  we  would  understand. 

For  example,  if  country  x  would  insist  that  copyrights  within 
its  nation  were,  in  fact,  state  held  or  state  owned  it  could  move  in  our 
forums  to  represent  that  state  as  the  holder  of  a  copyright,  notwith- 
standing the  fact  that  the  author  we  would  normally  recognize  him  to 
be  a  different  entity  than  the  state.  Is  that  what  you're  driving  at? 

Mr.  Biller.  No  ;  our  position  is  that  we  favor  the  enactment  of  that 
section  in  order  to  promote  to  the  maximum  the  individual  freedom 
of  authors.  If  a  particular  author  lived  in  a  country  whose  domes- 
tic system  required  that  the  government  of  that  country  hold  the  cop}- 
right  and  that  author  managed  to  publish  his  work  in  the  United 
States,  even  though  the  government  of  his  country  was  the  legal  holder 
of  the  copyright,  we  would  favor  the  enactment  of  this  legislation  to 
prevent  that  government  from  suing  in  the  U.S.  courts  to  prevent  the 
publication. 

Mr.  Kastenmeier.  I  can  understand  the  policy  reasons  on  both  sides 
of  that  one.  It  would  be  very  difficult.  I  understand  the  basic  motiva- 
tion. 

How  could  you  expect  to  have  some  continued  comity  with  that  gov- 
ernment with  respect  to  the  field  of  its  endeavor  ? 

Mr.  Biller.  Well,  there  are  two  points  I  would  like  to  make.  First, 
we  believe  that  the  importance  of  promoting  freedom  of  thought  and 


123 

the  importance  of  communication  across  international  borders  is  moi-e 
important  than  some  of  the  other  considerations  involved.  Second, 
with  regard  to  some  of  the  countries  which  have  this  kind  of  system,  we 
have  no  indication  whatsoever  that  they  have  any  intention  of  bringing 
suit  in  American  courts. 

So,  we  don't  believe  it  is  a  real  problem  that  we  would  have.  In  the 
case  of  the  government  of  the  Soviet  Union,  for  example,  which  has 
such  a  system,  we  have  no  indication  that  they  will  bring  suit  in 
American  courts  to  prevent  the  publication  in  the  United  States  of 
works  of  dissident  Soviet  authors. 

Mr.  K.\STENMEiER.  I  See.  It  is  the  policy  of  the  State  Department, 
notwithstanding  the  success  of  the  Universal  Copyright  Convention 
and  its  membership,  that  we  should  be  in  a  position  to  adhere  to  the 
Berne  Convention  nonetheless ;  is  that  correct  ? 

Mr.  BiLLER.  Yes. 

Mr.  Kastenmeier.  In  your  view,  does  the  passage  of  this  bill,  in  its 
present  form,  qualify  us  for  entry,  for  adherence  to  the  Berne 
Convention  ? 

Mr.  BiLLER.  What  it  would  do,  Mr.  Chairman,  is  remove  one  of  the 
principal  obstacles  that  noAv  exists  to  our  adherence,  that  being  the 
term  of  protection,  by  extending  the  term  of  protection  to  the  lifetime 
of  the  author  plus  50  years.  That  would  remove  that  ob-;tacle  because 
that  is  the  term  provided  for  in  the  Berne  Convention.  There  are  some 
other  obstacles  which  would  have  to  be  overcome,  but  I  think  it  would 
be  quite  possible  to  work  them  out. 

Mr.  Kastenmeeer.  Are  those  obstacles  outside  of  the  perimeter  of 
what  the  statutes  provide  for? 

IMr.  BiLLER.  Yes,  sir. 

Mr.  Kastenmeier.  You  have  discussed  the  term  in  that  connection  ? 
Is  it  not  the  fact  that  there  are  one  or  more  countries  moving  away 
from  life  plus  50 ;  is  there  not  at  least  one  major  European  comitry 
that  has  moved  to  a  longer  term  than  that  ? 

Mr.  BiLLER.  I  am  not  aware  of  it,  Mr.  Chairman. 

Mr.  Kastenmeier.  As  far  as  you  are  aware,  all  the  Western  Euro- 
pean countries  have  life  plus  50  ? 

Mr.  BiLLER.  I  believe  so. 

Mr.  Kastenisieier.  Perhaps  I  ought  to  put  it  this  way,  what  coun- 
tries in  the  world  other  than  ourselves  have  a  term  other  than  life  plus 
50? 

Mr.  BiLLER.  I  don't  have  a  list  of  them  with  me.  If  you  would  like, 
I  can  submit  such  a  list  for  the  record. 

Mr.  Kastenmeier.  Thank  jou.  We  would  appreciate  that. 

Thank  you  very  much,  for  your  testimony. 

[The  material  referred  to  follows :] 

A  Compilation  op  National  Copyright  Duration  Standards  for  Literary, 

Musical,  and  Artistic  Works 

background 

The  copyright  duration  of  life  of  the  author  plus  50  years  was  first  advanced 
as  an  international  standard  in  the  1908  revision  of  the  Berne  Union.  Although 
this  term  was  not  made  obligatory  at  that  time,  in  1948  the  Berne  Convention 
was  amended  to  make  life  of  the  author  plus  50  years  the  minimum  term  of 
duration  for  members  of  the  Convention.  Today  the  "life  plus  fifty"  standard  is 
the  most  widely  accepted  standard  for  the  duration  of  copyright  protection. 

The  following  list  of  national  copyright  durations  was  compiled  from  Copv- 
right  Laws  and  Treaties  of  the  World  or  from  other  more  recent  sources. 


124 

Life  of  the  Author  plus  50  years  (7^  countries) 

Argentina ;  Australia  ;  Austria  ;  Belgium  ;  Bulgaria  ;  Burundi ;  Cameroon  ; 
Canada;  Central  African  Republic;  Ceylon  (Sri  Lanka)  ;  Chad;  China,  Republic 
of;  Congo  (Brazzaville)  ;  Costa  Rica;  Cyprus;  Czechoslovakia;  Dahomey;  Den- 
mark ;  Ecuador ;  Egypt,  Arab  Republic  of ;  El  Salvador,  Republic  of ;  Ethiopia, 
Empire  of ;  Fiji ;  Finland ;  France ;  Gabon ;  German  Democratic  Republic ; 
Greece  ;  Guatemala  ;  Holy  See  ;  Hungary  ;  Iceland  ;  India  ;  Indonesia  ;  Republic 
of  Ireland;  Israel;  Italy;  Ivory  Coast;  Japan;  Laos;  Lebanon;  Liechtenstein; 
Luxembourg;  Madagascar;  Mali;  Monaco;  Morocco;  Nepal;  Netherlands;  New 
Zealand  ;  Niger  ;  Norway  ;  Pakistan ;  Paraguay ;  Peru  ;  Philippines  ;  Portugal ; 
Rwanda  ;  San  Marino ;  Senegal ;  Sierra  Leone  ;  Singapore  ;  South  Africa,  Repub- 
lic of;  Sweden;  Switzerland;  Syrian  Arab  Republic;  Togo;  Tunisia;  Turkey; 
Uganda  ;  United  Kingdom  ;  Venezuela  ;  Yugoslavia  ;  and  Zaire. 

Xdfe  of  Author  plus  20  years 

Poland. 
Xife  of  the  Author  plus  25  years  (IS  countries) 

Ghana ;  Iraq ;  Kenya  ;  Liberia  ;  Libya  ;  Malawi ;  Malaysia  ;  Malta  ;  Mauritius  ; 
Nigeria;  Tanzania,  United  Republic  of;  Union  of  Soviet  Socialist  Republics; 
and  Zambia. 
-Life  of  the  Author  plus  30  years  (9  countries) 

Bolivia  ;  Chile ;  Dominican  Republic ;  Iran ;  Jordan,  Hashemite  Kingdom  of ; 
Korea ;  Mexico  ;  Nicaragua  ;  and  Thailand. 

'Life  of  the  Author  plus  ^0  years 

Uruguay. 
hife  of  the  Author  plus  GO  years 

Brazil. 
Life  of  the  Author  plus  70  years 

Germany,  Federal  Republic  of. 
Life  of  the  Author  plus  80  years  (4  countries) 

Colombia  ;  Cuba  ;  Panama  ;  and  Spain. 

Vai-iable  Copyright  Term 

In  the  following  countries  the  duration  will  vary  depending  on  the  category 
of  the  author's  heirs.  In  all  the  countries  listed  below,  an  author  enjoys  copy- 
right protection  during  his  lifetime.  The  term  beyond  the  author's  life,  however, 
is  controlled  by  the  nature  of  the  author's  heirs.  (3  countries) — Albania;  Haiti; 
and  Romania. 

Miscellaneous  Categories  (Unrelated  to  life  of  the  Author) 

Afghanistan — 20  years ;  Burma,  Union  of — 10  years ;  Honduras — 10,  15  or  20 
years ;  and  United  States — 28  years,  renewable  for  28  years. 

Countries  without  copyright  laws,  or  for  ichich  accurate  information  is  unavail- 
able 
Algeria  ;  Andorra  ;  Bahrain  ;  Barbados ;  Botswana ;  Cambodia ;  China,  Peoples 
Republic  of;  Equatorial  Guinea;  Gambia;  Guinea,  Republic  of:  Guyana;  Ja- 
maica ;  Kuwait ;  Lesotho  ;  Maldive  Islands  ;  Mauritania  ;  Mongolia ;  Nauru,  Re- 
public of ;  Saudi  Arabia ;  Somalia ;  Southern  Yemen ;  Sudan  ;  Swaziland  ;  Trinidad 
and  Tobago ;  Upper  Volta  ;  Viet-Nam,  Republic  of ;  Western  Samoa  ;  and  Yemen. 

Mr.  Kastenmeier.  I  would  like  to  yield  to  the  gentleman  from 
Illinois. 

Mr.  Railsback.  How  serious  is  the  Canadian  exception  you  have 
alluded  to  on  page  G ;  what  effect  could  that  have  as  far  as  preventing 
us  from  joining  the  Berne  Convention  ? 

]Mr.  BiLLEK.  I  think  the  effect  on  our  general  trade  policy  and  the 
negotiations  we  are  engaged  in  in  Geneva  are  more  serious  than  the 
effect  on  our  joining  the  Berne  Convention. 

What  the  provision  does,  Mr.  Congressman,  is  introduce  a  new 
element  of  discrimination,  which  is  quite  clear  and  is  patently  dis- 
criminatory, in  our  legislation. 


125 

Mr.  Eailsback.  The  Canadian  exception? 

Mr.  BiLLEK.  Yes,  sir.  This  would  occur  at  a  period  in  time  where 
we  are  engaged  in  major  initiatives  to  have  other  countries  reduce  or, 
hopefully,  eliminate  their  discrimination  and  nontariff  barriers.  This 
would  be  adding  a  discriminatory  character  to  a  continuing  nontariff 
barrier. 

Mr.  Eailsback.  So,  now  your  authors  publish  not  only  in  this  coun- 
try, but  also  in  Canada  within  a  30-day  period  in  order  to  derive  some, 
benefits  that  they  otherwise  would  not  have? 

Mr.  BiLLER.  The  Canadian  exception  does  not  exist  now. 

Mr.  Eailsback.  The  exception  does  not  exist  now? 

Mr.  BiLLER.  It  would  be  introduced  by  the  legislation. 

Mr.  Eailsback.  I  guess  I  am  referring  to  something  else ;  I  am.  a 
novice  in  this. 

Mr.  BiLLER.  The  30-day  provision  is,  if  a  work  is  published  within 
30  days  of  its  first  publication  in  the  United  States,  it  is  deemed  to 
be  published  simultaneously  in  other  countries. 

Mr.  Eailsback.  Thank  you.  I  yield  my  time. 

Mr.  IvASTENMEiER.  The  gentleman  from* California,  Mr.  Danielson. 

Mr.  Danielson.  In  your  statement  you  used  the  acronym  GATT ; 
what  does  that  mean? 

Mr.  BiLLER.  Tliat  is  the  General  Agreement  on  Tariffs  and  Trade. 

Mr.  Danielson.  I  assume  that  is  a  treaty  of  some  sort,  is  that 
correct  ? 

Mr.  BiLLER.  The  General  Agreement  on  Tariffs  and  Trade,  Mr. 
Danielson,  is  a  multilateral  treaty  which  we  entered  into  with  most 
of  the  major  trading  comitries  of  the  world  in  late  1948  by  which  we 
established  the  rules  that  establish  international  trade. 

Mr.  Danielson.  It  is  a  treaty? 

Mr.  BiLLER.  It  is  an  executive  agreement,  Mr.  Danielson,  I  am  told. 

Mr.  Danielson.  What  is  an  FCN? 

Mr.  BiLLER.  FCN  stands  for  Friendship,  Commerce,  and  Naviga- 
tion. Treaties  of  Friendship,  Commerce,  and  Navigation  and  the  stand- 
ard types  of  bilateral  treaties  which  we  enter  into  with  other  countries 
to  assure  them  we  will  not  discriminate  against  them  or  their  nationals. 

Mr.  Danielson.  Are  they  uniformly  a  two-party  agreement? 

Mr.  BiLLER.  Yes,  they  are  always  bilateral,  and  they  follow  the  same 
nondiscriminatory  pattern. 

Mr.  Danielson.  Thank  you. 

Mr.  Kastenmeier.  The  gentleman  from  Massachusetts. 

Mr.  Drinan.  I  have  no  questions  but  I  want  to  thank  Mr.  Biller.  I 
would  just  like  to  say  that  I  commend  him  for  his  testimony  and  it  is 
nice  to  be  in  agreement  with  the  Department  of  State  from  time  to 
time. 

Mr.  Kastenmeier.  The  gentleman  from  New  York. 

Mr.  Badillo.  I  just  wonder  what  is  the  Department's  feeling  about 
other  U.S.  agencies  that  are  drafting  language  of  their  own.  Who  is 
drafting  language;  I  understand  there  are  other  agencies  drafting 
their  own  language  ? 

Mr.  Biller.  The  Copyright  Office,  I  believe,  has  some  language  of 
its  own.  It  is  not  our  intent  to  cause  bureaucratic  problems.  We  want 
to  make  clear  that  we  agree  with  the  language. 

Mr.  Drinan.  But  the  present  language  is  not  acceptable  ? 


126 

]\Ir.  BiLLER.  No;  it  is  acceptable.  But,  we  would  support  any  alter- 
native language  if  it  were  to  achieve  the  same  objective. 

Mr.  Kastenisieier.  The  gentleman  from  New  York,  JNIr.  Pattison. 

Mr.  Pattison.  I  liave  no  questions. 

Mr.  Kastenmeier.  I  have  just  one.  You  devoted  quite  a  bit  of  your 
statement  to  the  manufacturing  clause.  Really,  8  to  10  years  ago  we 
tried  to  limit  tlie  effect  of  it  on  the  theory  that  eventually  it  might 
well  be  phased  out  consistent  with  national  policy. 

I  am  not  sanguine  about  how  it  presently  appears  in  H.R.  2223.  I 
rather  agree  with  the  thrust  of  your  statement  and  wonder  it  if  might 
be  useful  for  our  purposes  intermitionally  to  place  a  further  restric- 
tion on  that  section  which  would  limit  the  effect  of,  actually  limit  the 
effect  of  the  manufacturing  clause  to  a  term  certain,  for  example,  6 
years  from  date  or  some  other  such  specific  period  of  time  wherein- 
after  it  would  no  longer  have  any  force  or  effect'^  Would  that  not  be 
helpful  to  the  State  Department  with  respect  to  its  dealings  with 
Great  Britain  and  otlier  countries? 

]Mr.  BiLLER.  Yes.  sir.  I  think  it  would.  AYe  fully  realize  that  there 
could  be  a  difficulty  posed  for  some  American  manufacturers  if  pro- 
tection like  this,  which  has  existed  in  legislation  for  many  years,  were 
suddenly  terminated. 

If  the  Congress  should  decide  that  in  oider  to  achieve  a  desirable 
transition  that  some  sort  of  phaseout  period  is  necessary,  we  would 
support  such  a  position. 

Mr.  Kastenmeier.  I  thank  you,  Mr.  Biller  and  your  colleagues  this 
morning. 

]Mr.  Danielson.  May  I  ask  an  additional  question  ? 

Mr.  Kastenmeier.  Certainly. 

]Mr.  Danieeson.  Concerning  section  101: (c)  I  have  been  puzzling 
here.  Maybe  you  can  give  me  a  short  cut.  Does  a  foreign  state  have 
standing  in  the  U.S.  courts  to  bring  the  kind  of  an  action  contem- 
pl ated,  on  the  communities  referred  to  in  101:  (c)  ? 

Mr.  Biller.  At  the  present  time  ? 

Mr.  Danielson.  Yes. 

Mr.  Biller.  Yes,  sir. 

Mr.  Danielson.  In  another  sub  of  this  committee — Mr.  Eailsback 
was  on  it,  I  believe — we  have  been  considering  the  advisability  or  the 
lack  thereof  permitting  foreign  states  to  bring  action  in  the  United 
States  and  you  feel  it  does  have  that? 

Mr.  Biller.  I  don't  know,  I  just  wanted  to  try  and  clarify  it  for  you. 

Mr.  Kastenmeier.  We  appreciate  your  appearance  here  this  morning 
and  that  of  your  colleagues.  Thank  you. 

[Witness  excused.] 

Mr.  Kastenmeier.  The  Chair  would  like  to  call  upon  Deputy  Assist- 
ant Attorney  General  Irwin  Goldbloom  of  the  Civil  Division  of  the 
Department  of  Justice.  Would  3'ou  please  identify  your  colleagues  for 
the  committee. 

Mr.  Goldbloom.  On  my  left  is  John  Murphy  and  on  his  left  is  JMiles 
Ryan.  On  my  right  is  Michael  Werth.  All  of  these  gentlemen  are  from 
the  Justice  Department. 

Mr.  ICastenmeier.  I  notice  that  you  have  a  36-page  statement  which 
you  may  deliver  in  its  entirety  or  if  you  care  to,  you  may  summarize. 

Mr.  Goijjbloom.  Thank  you. 


127 

TESTIMONY  OF  IRWIN  GOIDBLOOM,  DEPUTY  ASSISTANT  ATTOR- 
NEY GENERAL,  CIVIL  DIVISION,  DEPARTMENT  OF  JUSTICE 

Mr.  GoLDBLooM.  Mr.  Chairman,  I  am  pleased  to  respond  to  the 
conmiittees  invitation  to  present  the  views  of  the  Department  of 
Justice  on  H.K.  2223,  a  bill  for  the  general  revision  of  the  copyright 
law,  title  17  of  the  United  States  Code,  and  for  other  purposes. 

We  are  in  sympathy  with  the  general  purpose  of  title  I  of  the  bill,  to 
provide  a  thorough  revision  and  updating  of  the  copyright  law,  title 
17,  United  States  Code.  However,  as  set  out  below,  we  reconmiend 
certain  modifications  in  the  proposed  revision.  We  oppose  title  II 
of  the  bill  which  creates  a  new  type  of  intellectual  property,  a  hybrid 
between  a  copyright  and  a  design  patent. 

H.R.  2223  and  its  companion  bill,  S.  22,  are  nearly  identical  with 
S.  1361  as  passed  by  the  Senate  in  tlie  93d  Congress  on  September  0, 
1974.  There  are,  however,  technical  and  perfecting  amenchnents  and 
changes  required  by  the  enactment  of  Public  Law  93-573,  providing 
for  interim  copyright  extension  and  increased  penalties  for  tape  piracy. 

A  section-by-section  analysis  of  S.  13G1  is  part  of  Senate  Ileport  Xo. 
93-983,  93d  Congress,  at  pages  102  to  228.  Further  details  as  to  the 
history  of  this  copyright  revision  bill  appear  in  the  same  report  at 
pages  101  to  103.  The  summary  below  is  specifically  directed  to  fea- 
tures of  the  Bill  of  particular  concern  to  this  Dei>artment. 

Section  107  relates  to  the  "fair  use"  doctrine.  This  is  fully  dis- 
cussed in  Senate  Report  No.  93-983,  pages  115  to  120.  The  scope  of  fair 
use  in  copying  is  illustrated  to  include  reproduction  by  a  teacher 
or  a  student  of  a  small  part  of  work  to  illustrate  a  lesson  (S.  Report 
93-983,  p.  115). 

This  example,  therefore,  does  not  include  reproduction  of  the 
entire  work  to  illustrate  a  lesson.  In  determining  whether  the  use  made 
of  a  work  in  a  particular  case  is  a  fair  use,  a  court  is  to  consider  as 
factors  the  purpose  and  character  of  the  use,  the  nature  of  the  copy- 
righted work,  the  amount  and  substantiality  of  the  portion  used  in  re- 
lation to  the  co])yrighted  work  as  a  whole,  and  the  effect  of  the  use 
upon  the  potential  market  for  or  value  of  the  copyrighted  work. 

As  to  the  reproduction  of  entire  works  for  classroom  use,  the  doc- 
trine of  fair  use  would  be  applied  "strictly"  (S.  Report,  93-983.  p.  117) . 

Sections  108,  110,  and  111  cover  exemption  from  liability  for  copy- 
right infringement  in  the  fields  of  library  and  archive  reproduction 
(sertion  108V  the  exemption  of  certain  performances  and  displays, 
such  as  in  classrooms  in  face-to-face  teaching  activities  of  a_  non- 
profit educatioual  institution  (section  110)  and  the  retransmission 
of  a  primary  transmission  simultaneously  with  the  primary  trans- 
mission or  nonsimultaneously  with  the  -primary  transmission  if  by 
a  "cable  system"  outside  defined  geographic  areas  ("secondary  trans- 
missions" of  section  111) . 

Section  302  establishes  a  new  term  for  the  duration  of  roDyright. 
Crenerally,  this  is  for  a  term  consisting  of  the  life  of  the  author  and 
50  years  after  his  death.  In  the  case  of  joint  works,  the  period  of  50 
years  commences  upon  the  death  of  the  last  surviving  author.  For 
finonymous  works,  pseudonymous  works,  and  works  made  for  hire, 
the  copyright  period  is  for  a  term  of  75  years  from  the  year  of  its 


128 

first  publication,  or  a  term  of  100  years  from  the  year  of  its  creation, 
whichever  expires  first. 

Where  one  or  more  authors  are  identified  for  an  anonymous  or 
pseudonymous  work  before  the  end  of  the  copyright  term,  the  longer 
period  of  copyright  terminating  50  years  after  the  death  of  the  author 
then  applies. 

Section  405  deals  with  the  effect  of  the  omission  of  the  copyright 
notice.  Section  411  covers  infringement  actions  in  certain  situations. 

Section  506  contains  special  provisions  applying  to  persons  who 
infringe  willfully  and  for  purposes  of  commercial  advantage.  With 
respect  to  copyright  in  a  sound  recording,  for  the  first  such  offense,  a 
person  is  fined  not  more  than  $25,000  or  imprisoned  not  more  than 
1 5'ear,  or  both. 

For  any  subsequent  offense,  a  person  is  fined  not  more  than  $50,000 
or  imprisoned  not  more  than  2  years,  or  both.  Section  507  provides  a 
3-year  statute  of  limitations  for  both  criminal  proceeding-s  pursuant 
to  provisions  of  the  bill  after  the  cause  of  action  arose,  under  the 
provisions  of  Section  116  and  506  and  for  civil  actions  after  the  claim 
accrued. 

Section  601  affords  preferential  protection  to  publishers  and  print- 
ers of  the  United  States  and  Canada,  Report  93-983,  pp.  195-200. 

Sections  801-809  are  concerned  with  the  Register's  duties  to  col- 
lect royalties  and  make  determinations  concerning  the  adjustment 
of  copyright  royalty  rates  for  certain  uses  where  compulsory  licenses 
are  provided  by  the  bill. 

They  also  relate  to  his  duties  to  determine  in  certain  circumstances 
the  distribution  of  these  royalties  deposited  with  the  Register  of  Copy- 
rights. Section  803  provides  for  selection  of  membership  of  the  tri- 
bunal to  make  necessary  detenninations  with  respect  to  royalty  mat- 
ters, to  be  on  the  basis  of  a  list  of  names  furnished  by  the  American 
Arbitration  Association  to  the  Register  of  Copyrights.  Section  804 
provides  for  procedures  to  be  followed  by  the  tribunal  in  making  its 
determinations.  Subsection  (e)  of  section  804  directs  that  the  tri- 
bunal shall  render  a  final  decision  in  each  proceeding  within  1  year 
from  the  certification  of  the  panel,  certified  by  the  Register  of  Copy- 
rights on  the  basis  of  the  names  furnished  by  the  American  Arbitra- 
tion Association.  This  subsection  further  provides  that  the  Senate 
Committee  on  the  Judiciary  and  the  House  of  Representatives  Com- 
mittee on  the  Judiciary,  upon  showing  of  good  cause,  inay  waive  this 
requirement  of  the  rendering  of  a  final  decision  within  1  j^ear  from  the 
certification  of  the  panel  in  a  particular  proceeding. 

The  judicial  review  for  tribunal  final  determinations,  provided  in 
section  809  (concerning  the  distribution  of  royalty  fees),  is  limited. 
A  court  may  vacate,  modify  or  correct  such  a  determination  if  it  was 
procured  by  corruption,  fraud  or  undue  means,  where  a  member  of  the 
panel  was  guilty  of  misconduct  by  which  the  rights  of  anj^  party  were 
prejudiced. 

Provisions  for  the  protection  of  ornamental  designs  of  useful  articles 
appear  in  title  II  of  the  bill.  Section  201  provides  that  authors  or 
proprietors  of  an  original  ornamental  design  of  a  useful  article  may 
secure  a  period  of  protection,  except  for  certain  subject  areas  set  out 
in  section  202,  for  a  period  provided  in  section  205.  Section  201  con- 


129 

tains  definitions  of  the  terms  "useful  article",  "design  of  a  useful 
article",  "ornamental"  and  "original"  as  needed  for  purposes  of  the 
particular  protection  provided  by  this  title.  Section  204  provides  that 
protection  commences  on  the  date  when  the  design  is  first  made  pub- 
lic, either  by  being  exhibited,  publicly  distributed,  or  offered  for  sale 
or  sold  to  the  public.  Section  205  provides  that  the  term  of  protection 
extends  for  5  years,  subject  to  being  renewed  for  an  additional  5  years 
prior  to  the  expiration  of  the  initial  term.  Section  206  provides  for  cer- 
tain design  notices  to  be  applied  to  the  products  protected,  and  section 
207  limits  recovery  for  infringement  if  the  design  notice  requirement 
of  section  206  have  been  omitted- 

However,  actual  notice  of  design  protection  to  a  particular  per- 
son can  take  the  place  of  the  design  notice  requirement  of  section  206. 

Section  209  of  title  II  provides  for  loss  of  protection  if  registration 
of  the  design  is  not  macle  within  6  months  after  the  date  on  which 
the  design  was  first  made  public,  who  may  make  application  for  re- 
newal registration  of  a  design  protected  imder  the  bill,  how  and  under 
what  conditions  and  with  what  supporting  papers  a  design  protected 
under  the  bill  can  be  renewed. 

Section  212  of  title  II  deals  with  the  examination  of  the  design 
application  and  provides  for  cancellation  of  registrations  on  applica- 
tion of  a  person  who  believes  he  is  or  will  be  damaged  by  a  registra- 
tion under  this  title.  Grounds  for  cancellation  are  that  the  design 
is  not  subject  to  protection  under  the  provisions  of  the  title. 

Section  220  of  title  II  provides  remedies  for  infringement  of  a  de- 
sign protected  under  this  title.  It  provides  for  a  civil  action  to  have 
judicial  review  of  a  final  refusal  of  the  Administrator  to  register  the 
design  as  for  infringement  if  commenced  within  a  time  period  speci- 
fied by  the  Administrator  of  the  title,  but  not  less  than  60  days  after 
the  decision,  and  permits  simultaneous  remedy  for  infringement  by 
the  same  action  if  the  court  adjudges  the  design  subject  to  protection 
under  this  title.  This  would  appear  to  mean  that  the  infringer  would 
liave  to  be  joined  as  a  party  defendant  with  the  Administrator  of 
this  title.  The  requirements  for  such  an  action  are  that  the  design 
proprietor  has  filed  and  prosecuted  to  final  refusal  an  application 
for  registration  of  the  design,  a  copy  of  the  complaint  in  the  action 
is  delivered  to  the  Administrator  within  10  days  after  commencement 
of  the  action,  and  the  defendant  has  committed  acts  which  would  con- 
stitute infringement  of  the  design. 

Section  221  of  title  II  gives  courts  jurisdiction  of  actions  under  this 
title  and  authority  to  grant  injunctions  to  prevent  infringement,  in- 
cluding temporary  restraining  orders  and  preliminary  injunctions. 

Section  222  of  title  II  relates  to  recover}^  of  infringement,  setting 
maxunum  amounts  of  recovery  per  infringing  copy  by  way  of  com- 
pensation and  provides  for  the  delivery  for  destruction  or  other  dis- 
position of  any  infringing  articles. 

Section  223  of  title  II  provides  for  cancellation  of  a  registration  of  a 
design  by  a  court  and  certification  by  the  court  of  such  order  to  the 
Administrator. 

Section  227  of  title  II  provides  that  copyright  protection  under  title 
I,  when  utilized  in  an  original  ornamental  design  of  a  useful  article, 
may  still  be  a  design  work  eligible  for  protection  under  the  provisions 
of  this  title. 


130 

The  issnance  of  a  design  patent  for  an  ornamental  desi^'n  for  an  ar- 
ticle of  manufacture  under  the  patent  laws,  title  35  United  States 
Code,  terminates  any  protection  of  the  desian  under  this  title. 

Section  229  of  title  II  provides  that  nothing  in  this  title  amiuls  or 
limits  common  law  or  other  rights  or  remedies  available  to  a  person 
with  respect  to  a  design  which  has  not  been  made  public  as  provided 
in  this  title  or  any  trademark  right  or  right  to  be  protected  against 
unfair  competition. 

Section  232  of  title  II  amends  various  other  statutes.  Of  particular 
importance  to  the  Departuicnt  is  the  revision  proposed  for  title  28. 
United  States  Code,  §  1498  (a)  to  provide  that  whenever  a  registered 
design  or  invention  is  used  or  manufactured  by  or  for  the  United 
States  without  license  of  the  owner  thereof,  the  owner's  remedy  shall 
be  by  action  against  the  United  States  in  the  Court  of  Claims  for  recov- 
ery of  reasonable  and  entire  compensation.  Use  or  manufacture  of 
a  registered  design  or  invention  by  a  conti-actor,  subcontractor  or  any 
person,  firm  or  corporation  for  the  Government  and  with  the  author- 
ization or  consent  of  the  Government  is  to  be  construed  as  use  or  manu- 
facture by  or  for  the  United  States. 

Use  or  manufacture  by  or  for  the  United  States  of  any  article  owned, 
leased,  used  by  or  in  the  possession  of  the  United  States  prior  to,  in  the 
case  of  an  invention,  July  1,  1918,  and  for  registered  designs,  prior 
to  July  1,  1978,  is  not  to  be  the  basis  of  an  award  under  this  section. 
Government  employees  have  the  right  to  sue  the  Government  under 
this  section  except  when  in  the  position  to  order,  influence  or  induce  use 
of  the  registered  design  or  invention  by  the  Govermnent. 

Further  excluded  as  a  basis  for  claim  under  this  section  are  claims  by 
a  registrant  or  patentee  or  assignee  thereof  when  the  design  or  inven- 
tion was  related  to  the  official  functions  of  the  employee,  in  cases  in 
which  such  functions  included  research  and  development,  or  in  mak- 
ing of  which  Government  time,  materials  or  facilities  were  used. 

Section  233  provides  that  title  II  of  the  bill  shall  take  effect  1  year 
after  enactment  of  this  act. 

Section  234  precludes  a  retroactive  effect  for  the  provisions  of  the 
design  protection  of  the  bill. 

Section  106  states  generally  the  basic  rights  of  copyright  owners. 
Following  sections  of  the  same  chapter  set  forth  limitations  and  excep- 
tions to  those  rights.  The  public  interest  in  the  promotion  of  education 
and  scholarly  pursuits  calls  for  a  careful  consideration  of  such  circum- 
stances as  may  impede  the  dissemination  of  knowledge.  In  this  regard, 
section  107  of  the  bill,  dealing  with  "fair  use"  of  copyrighted  informa- 
tion, leaves  unclear  the  extent  to  which  librarians  can  reproduce  works 
for  use  in  libraries. 

It  would  seem  in  the  public  interest  to  work  an  accommodation  be- 
tween the  copyright  and  such  reproduction.  But,  as  a  doctrine  applied 
on  a  case-by-case  basis,  "fair  use"  renders  it  uncertain  whether,  with- 
out infringement,  librarians  or  library  patrons  can  make  copies  of 
library  materials  for  the  patrons'  use.  Because  of  the  advantages  of  the 
economical  and  speedy  means  of  reproduction  now  available  in  li- 
braries, it  would  be  socially  desirable  not  to  discourage  use  thereof 
by  uncertainty  over  the  extent  of  the  "fair  use"  doctrine. 

Thus,  we  strongly  believe  that  a  definition  in  the  bill  of  the  doc- 
trine as  applied  to  such  reproduction  in  libraries  is  definitely  needed. 


131 

Moreover,  defining  the  meaning  of  "fair  use"  in  tliis  connection  also 
could  serve  to  reduce  uncompensated  infringement.  To  carry  out  our 
suggestion  to  give  maximum  certainty  as  to  "what  is  a  fair  use,"  and 
give  more  meaningful  scope  to  the  exemptions  from  copyright  liability 
of  section  108  discussed  below,  we  suggest  the  following  changes :  Sec- 
tion 107,  last  line,  p.  9,  line  9,  change  "work"  to 

"work;  provided  that  nothing  contained  in  this  section  shall  be  con- 
strued to  limit  the  use  by  reproduction  in  whole  or  in  part  in  copies 
or  phonorecords  or  by  other  means  specified  in  section  106  whenever 
used  in  nonprofit  educational  activities." 

Eeason :  Clarity  of  scope  of  fair  use  for  educational  activities. 

Section  108(d),  lines  5-6,  p.  10,  lines  1,  2,  delete  "of  a  small  part". 

Reason:  Libraries  should  be  able  to  reproduce  entire  work  for 
scholarship. 

Section  108(e).  lines  4-7,  p.  10,  lines  13-16,  delete  "if  the  library  or 
archives  has  *  *  *  at  a  fair  price," 

Reason :  Too  difficult  and  cumbersome  to  make  purchase  investiga- 
tion ;  discourages  use. 

Section  108,  in  subsection  (a),  provides  that  it  shall  not  infringe  a 
copyright  for  a  library  or  archives  to  reproduce  or  distribute  no  more 
than  one  copy  or  phonorecord  of  a  work  under  conditions  specified  in 
subsequent  parts  of  the  section.  These  conditions  require,  among  other 
things,  that  the  reproduction  or  distribution  be  made  without  any 
purpose  of  commercial  advantage  and  that  the  collections  of  the  li- 
brary or  archives  involved  be  open  to  the  public  or  available  to  spe- 
cialized researchers,  whether  or  not  affiliated  with  the  libraiy  or  ar- 
chives involved  or  with  the  institution  of  which  the  libraiy  or  archives 
is  a  part.  Under  subsection  (b),  the  rights  of  reproduction  and  dis- 
tribution free  from  liability  would  apply  to  a  copy  or  phonorecord  of 
an  unpublished  work  duplicated  in  facsimile  solely  for  preservation 
and  security  or  for  deposit  for  research  use  in  a  library  or  archives 
of  the  type  covered  by  the  section. 

Under  subsection  (c),  the  exemption  from  infringement  would  ap- 
ply to  a  duplication  in  facsimile  of  a  published  work  solely  for  re- 
placement of  a  copy  or  phonorecord  that  is  damaged,  deteriorating, 
lost  or  stolen,  if  after  reasonable  eifort  it  has  been  determined  that  an 
unused  replacement  cannot  be  obtained  at  a  fair  price. 

The  rights  of  reproduction  and  distriJxition  under  section  108  ex- 
tend to  the  isolated  and  unrelated  reproduction  or  distribution  of  a 
single  cop3'^  or  phonorecord  of  either  a  published  or  unpublished  work 
on  separate  occasions  unless  the  library  or  archives  is  aware  or  has 
substantial  reason  to  believe  that  it  is  engaging  in  a  related  or  con- 
certed reproductioji  or  distribution  or  engages  in  a  systematic  repro- 
duction or  distribution  of  a  copy  of  an  item  forming  part  of  a  copy- 
righted collection  or  periodical  issue  or  of  a  copy  or  phonorecord  of  a 
small  part  of  any  other  copyrighted  work. 

As  we  read  this  provision,  it  will  not  prevent  libraries  and  archives 
from  reproducing  works  in  machine-readalDle  language  in  connection 
with  the  storage  and  use  of  computerized  information  systems.  "VVe 
hope  that  the  House  legislative  history  of  the  bill  will  clearly  support 
this  construction,  for  the  storage  and  use  of  data  in  such  systems  is  of 
great  importance  to  repositories  and  sources  of  scholarly  research  ma- 
terial. To  impose  copyright  liability  impeding  the  storage  of  such 


132 

'data  would  be  socially  undesirable.  If  our  interpretation  of  section 
108  is  wrong,  we  recommend  that  the  section  be  changed  to  extend  the 
applicable  exemption  to  reproduction  in  machine-readable  language 
for  storage  and  use  in  information  systems. 

The  ease  of  transfer  of  computerized  data  is  another  area  in  which 
H.R.  2223  raises  a  problem.  Universities,  research  agencies,  govern- 
ment, and  private  industry  are  developing  information  networks  using 
computers  and  other  electronic  equipment  to  speed  the  transfer  of 
information  from  source  to  user. 

H.R.  2223  does  not  provide  a  method  by  means  of  which  informa- 
tion systems  users  can  easily  obtain  the  permission  of  copyright  own- 
ers for  use  of  their  material.  The  difficulty  and  loss  of  time  entailed  in 
many  cases  in  contacting  owners  may  inliibit  users  from  including 
material  in  their  systems.  Or  users  may  be  unable  to  employ  material 
in  their  systems  in  sufficient  time  in  situations  where  speed  is  essen- 
tial. It  would  appear  in  the  public  interest  for  the  bill  to  contain  some 
guarantee  that  information  systems  which  are  willing  to  pay  royalties 
for  material  used  can  obtain  easier  access  to  copyrighted  information, 
at  least  in  high-priority  areas  such  as  scientific  and  technological 
works. 

The  proposed  legislation  also  leaves  unclear  at  what  point  in  the 
use  of  computerized  copyrighted  material  the  liability  for  royalty 
payment  attaches.  Under  H.R.  2223,  it  would  seem  that  placing  copy- 
righted data  into  a  computer  (which  may  form  part  of  an  information 
system)  might  infringe  the  copyright.  Since  the  use  of  computers  for 
storage  and  retrieval  of  information  to  some  extent  may  replace  the 
sale  of  books,  in  most  cases  the  payment  of  royalties  should  be  re- 
quired. However,  just  where  in  the  process  the  royalty  payment  should 
be  assessed,  is  open  to  question.  We  believe  it  unwise  to  levy  a  "toll" 
at  the  "input"  stage  in  the  process.  Levying  on  the  "input"  into  com- 
puters could  impede  the  development  of  information  systems  and  may 
render  meaningless  any  exemption  for  the  use  of  computerized  in- 
formation for  educational  purposes  which  may  be  read  into  H.R.  2223. 

The  subject  of  the  application  of  copyright  to  commimity  antenna 
television  has  presented  considerable  difficulty  in  previous  drafts  of 
proposed  revisions  of  the  Copyright  Code.  H.R.  2223  attempts  a  com- 
promise between  the  extreme  positions  of  complete  liability  for  in- 
fringement of  copyright  by  secondary  transmission  by  CATV  on  one 
hand,  and  almost  complete  freedom  from  liability  on  the  other  hand. 
While  we  support  the  imposition  of  a  degree  of  liability  upon  CATV, 
we  believe  that  H.R.  2223  should  provide  an  area  of  free  use  for  such 
systems  within  tlie  local  service  area. 

The  first  part  of  subsection  (c)  of  section  111  provides  for  compul- 
sory licensing  of  secondarj'^  transmissions  of  a  primary  transmission 
by  an  FCC-licensed  broadcast  station  upon  compliance  witli  the  notice 
of  ownership  and  the  payment  provisions  of  subsection  (d),  and  (A) 
the  signals  of  the  primary  transmission  are  exclusively  aural  and  the 
secondary  transmission  is  permissible  under  the  rules,  regulations,  or 
authorizations  of  the  FCC;  (B)  where  the  CxlTV  system  is,  in  whole 
or  in  part,  within  the  local  service  area  of  the  primary  transmitter ;  or 
(C)  where  carriage  of  the  signals  comprising  the  secondary  transmis- 
sion is  permissible  under  the  FCC  rules,  regulations,  or  authoriza- 
tions. We  strongly  urge,  with  respect  to   (B),  that  the  secondai-y 


133 

transmittal  should  be  completely  free  of  liability ;  hence,  royalty-free 
or  no  licensing  would  be  in  order.  The  secondary  transmission  in  such 
a  situation,  where  the  CATV  system  is,  in  whole,  or  in  part,  within  the 
local  service  area  of  the  primary  transmitter,  finds  the  cable  system 
only  filling  gaps  or  improving  reception  in  the  service  area  of  the 
primary  transmitter,  supplementing  the  primary  transmission.  Such 
transmission  does  not  impair  the  primary  transmitter's  market;  in 
fact,  it  enhances  it.  The  copyright  holder  is  helped  and  not  hurt  by  such 
activity. 

Section  203  and  section  304(c)  (6)  (D)  concern  the  termination  of 
transfei*s  and  licenses.  These  sections  would  permit  the  author  or  his 
heirs  to  terminate  the  original  transfer  of  his  rights  at  any  time 
during  a  period  of  5  years  beginning  at  the  end  of  a  specified  time. 
However,  section  203(b)  (4)  and  parallel  section  304(0)  (6)  (D),  relat- 
ing to  transfers  of  copyrights  subsisting  after  January  1,  1977, 
provide  that  an  agreement  to  transfer  rights  subsequent  to  the  termina- 
tion of  a  prior  transfer  will  not  be  valid  vmless  made  after  the  effective 
date  of  that  termination  or  miless  made  to  the  original  grantee  or  his 
successor  in  title. 

We  do  not  believe  that  the  grantee  or  his  successor  should  be  in  a 
preferred  position  to  enter  into  an  agreement  for  transfer  prior  to 
termination  of  the  original  transfer.  We  see  no  reason  why  all  poten- 
tial transferees  should  not  have  an  equal  opportunity  to  enter  into 
such  an  agreement.  It  is  therefore  suggested  that  subparagraph  (4)  of 
section  203(b)  and  subparagraph  (D)  of  section  304(c)  (6)  be  deleted. 

Section  302  substantially  lengthens  the  time  of  copyright  protec- 
tion Avhen  compared  with  the  duration  of  copyright  in  works  under 
the  present  copyright  law.  At  the  present  time,  protection  is  granted 
for  28  years  from  the  date  of  publication  and  may  be  renewed  for  a 
second  28  years,  making  a  total  potential  term  of  56  years  in  all  cases. 
U.S.  patents  for  any  new  and  useful  process,  machine,  manufacture  or 
composition  of  matter  or  improvement  thereof,  are  granted  for  a  term 
of  17  years  (35  U.S-C.  154).  Patents  for  new,  original,  and  ornamental 
designs  of  articles  of  manufacture  are  granted  for  a  period  up  to 
14  years  (35U.S.C.  173). 

Patents  for  plants  are  granted  for  the  same  length  of  term  as  for 
new  and  useful  processes,  machines,  manufacture  or  composition  of 
matter  (35  U.S.C,  161).  Under  the  proposed  bill,  an  author  would 
receive  a  copyright  for  his  life  and  50  years  after  his  death.  Consider- 
ing the  average  life  expectancy  of  people  today,  this  will  double  the 
length  of  copyright  when  compared  with  the  present  one  for  many 
works. 

For  anonymous  works,  pseudonymous  works,  and  works  made  for 
hire,  the  term  is  somewhat  less,  but  still  significantly  greater  than 
provided  by  the  present  statute. 

Senate  report  No.  93-983,  pages  167-173,  discusses  various  con- 
siderations for  the  duration  of  copyright  in  works.  A  major  argument 
for  increasing  the  term  of  copyright  appears  to  be  that  the  extension 
conforms  with  foreign  laws  which  provide  for  longer  terms  of  copy- 
right than  the  present  U.S.  law.  This  argument  is  presented  in  the 
Senate  today. 

However,  we  do  not  believe  that  this  should  be  the  criterion  for  the 
proper  length  of  copyright  protection  in  the  United  States. 


134 

Under  the  Constitution,  article  1,  section  8,  the  purpose  of  a  copy- 
right is  to  promote  the  progress  of  science  and  useful  arts  by  securing, 
for  limited  times,  to  authors  and  inventors  the  exclusive  riglit  to  their 
respective  writings  and  discoveries  .While  it  may  be  urged  that  a  copy- 
right term  of  28  years  plus  an  additional  28  years  might  be  insufficient 
to  protect  the  interests  of  an  author  in  his  writings  in  view  of  the 
lengthening  of  the  ordinary  lifespan  in  modern  times,  the  proposed 
bill,  by  its  extended  duration  of  the  copyright  term,  appears  to  carry 
the  protection  far  beyond  the  contemplation  of  the  framers  of  the 
Constitution. 

As  an  alternative,  we  propose  to  proxdde  for  the  lengthening  of  the 
term  of  the  copyright  duration  to  be  at  least  coextensive  with  the  life- 
time of  the  author.  In  this  way,  the  author  will  be  insured  protection 
of  his  work  for  at  least  as  long  as  he  may  live.  Thus,  we  propose  the 
substitution  of  an  alternative  provision  to  section  302(a),  as  follows: 
(a)  In  general,  copyright  in  a  work  created  on  or  after  January  1, 
1977,  subsists  from  its  creation,  and  except  as  provided  by  the  follow- 
ing subsections,  endures  for  a  term  consisting  of  56  yeare  or  the  life 
of  the  author,  whichever  is  greater. 

A  conforming  amendment  should  also  be  made  in  section  302(b). 
The  provisions  of  section  302(c)  should  be  modified  to  limit  the  dura- 
tion of  anonymous  works,  pseudonymous  works,  and  works  made  for 
hire,  to  a  period  of  56  years  from  the  year  of  their  creation  or  first 
publication. 

Our  proposal  would  carry  out  the  constitutional  concept  of 
promoting  the  progress  of  science  and  useful  arts.  A  56-year  copy- 
right term,  as  may  be  extended  by  the  lifetime  of  the  author,  is 
believed  more  than  adequate  to  promote  this  constitutional  purpose. 
It  has  also  been  urged  that  growth  in  communications  m.edia  has 
lengthened  the  commercial  life  of  many  works.  This  does  not  justify 
lengthening  the  term  of  a  copyright  beyond  56  vears  or  the  lifetime 
of  the  author  because  a  lengthened  commercial  life  is  not  necessarily 
consistent  with  the  basic  constitutional  purpose. 

The  basic  question  with  respect  to  copyright  duration  to  be  an- 
swered by  the  Congress  is  whether  a  doubling  of  the  present  copvriglit 
term  for  many  works  is  desirable  to  promote  the  progress  of  science 
and  useful  arts.  Other  forms  of  Federal  protection  for  creative  works, 
such  as  patents  for  useful  devices,  plants,  and  designs,  are  all  for  pe- 
riods of  no  more  than  17  years.  Copyrights  in  writings  are  already  in  a 
preferred  position.  We  do  not  believe  that  the  promotion  of  the  prog- 
ress of  science  and  useful  arts  requires  a  doubling  of  the  possible  56- 
year  copyright  period.  Our  alternative  proposal  would  accommodate 
such  valid  concerns  as  may  exist  regarding  the  present  law  and,  at 
the  same  time,  carry  out  constitutional  goals. 

Section  405  deals  with  the  effect  of  omission  of  the  copyright  notice. 
Under  the  present  act,  omission  of  notice  on  published  copies  of  a 
work  ordinarily^  places  the  work  in  the  public  domain  (17  U.S.C. 
§  21) .  However,  if  such  notice  is  accidentally  omitted  from  a  particular 
copy  or  copies,  copyright  is  not  lost;  but  innocent  infrinirei-s  who  are 
misled  by  the  accidental  omission  are  not  liable  for  infringement. 
Under  section  405  of  the  bill,  omission  of  notice  from  "a  relatively 
smallnumber"  of  copies  or  phonorecords  publicly  distributed  will  not 
invalidate  the  copyright  whether  or  not  such  omission  was  accidental. 


135 

IVIoreover,  the  omission  of  notice  will  not  invalidate  the  copyright 
in  a  work  if  registration  for  the  work  is  made  within  5  years  after 
the  publication  without  notice  and  a  reasonable  effort  is  made  to  add 
notice  to  all  copies  or  phonorecords  distributed  to  the  public  in  the 
United  States  after  the  omission  is  discovered. 

As  under  the  present  law,  innocent  infringers  who  are  misled  by 
the  omission  of  notice  woidd  not  be  liable  in  actual  or  statutory  dam- 
ages for  infringement.  But  under  H.R.  2223,  they  might  have  to  sur- 
render profits  gained  through  the  infringement  and  be  subject  to 
injunction  or  payment  of  a  reasonable  license  fee  for  continuing  their 
activity  (section  405  (b)).  These  provisions  would  delete  from  17 
U.S.C.  §  21  the  provision  that  no  permanent  injunction  shall  be  had 
unless  the  proprietor  of  the  copyright  shall  reimburse  the  innocent 
infringer  his  reasonable  outlay  innocently  incurred  if  the  court,  in 
its  discretion,  shall  so  direct. 

A  copyright  should  be  protected  from  invalidation  only  when  the 
failure  to  provide  notice  was  tlie  result  of  an  accident  or  mistake  or  in 
violation  of  the  copyright  owner's  written  requirement  that,  as  a 
condition  of  authorization  of  public  distribution,  the  copies  or  phono- 
records  bear  the  prescribed  notice,  and  distribution  of  only  a  small 
number  of  such  items  has  been  made  to  the  public.  To  permit,  as 
proposed  in  section  405,  a  copyright  owner  to  issue  an  entire  publication 
of  his  work  without  notice  and  yet  enforce  the  copyright  tends  to  negate 
tlie  purpose  of  notice.  Although  iniiocent  infringers  would  incur  no 
liability,  they  would  still  have  to  establish  their  innocence  even  where 
the  omission  was  deliberate  in  many  cases.  We  suggest  that  the  sec- 
tion specifically  be  limited  to  the  eliect  of  omission  of  the  copyright 
notice  by  accident  or  mistake. 

We  also  believe  it  advisable  that  the  words  "particular  copy  or 
copies,"  contained  in  the  present  statute,  be  used  instead  of  the  broader 
and  more  general  words  "a  relatively  small  number,"  found  in  section 
405,  to  designate  the  limits  within  which  notice  may  be  omitted  with- 
out loss  of  copyright.  And  we  think  the  discretion  in  the  court  to 
order  reimbursement  to  the  innocent  infringer  should  be  retained. 

Subject  to  specified  exceptions,  section  601  provides  that  the  impor- 
tation into  or  public  distribution  in  the  United  States  of  more  than 
2,000  copies  of  a  work  consisting  preponderantly  of  nondramatic 
literary  material  in  English  by  an  American  or  i-esident  alien  author 
and  protected  under  the  Copyright  Code  is  prohibited,  unless  the  por- 
tions consisting  of  such  material  have  been  manufactured  in  the 
United  States  or  Canada. 

This  section  would  reenact  in  modified  form  a  previous,  highly  pro- 
tectionist nontariff  trade  barrier  (17  U.S.C.  §§  16,  197).  We  do  not  be- 
lieve that  there  is  either  a  necessity  or  desirability  for  such  a  provision 
which  creates  an  absolute  bar  to  certain  books  published  abroad. 

Section  601  is  entirelv  uni-elated  to  questions  of  copvright.  It  does 
not  protect  authors  at  all.  On  the  contrary,  section  601  decreases  the 
value  of  copvrights  hy  preventing  an  American  author  from  grant- 
ing worldwide  publication  rights  to  an  English  publisher  who  offei's 
more  favorable  compensation  than  an  American  publisher.  WhAtever 
the  merits  of  the  original  "infant  industry"  justificaton  for  the  manu- 
facturing clause,  the  restriction  is  clearlv  unnecessary  and  inappropri- 
ate today  in  light  of  the  strength  and  success  of  our  industry  and  in 


136 

light  of  our  Nation's  coinniitment  to  eliminate  nontariff  barriers  to 
international  trade  and  insure  vigorous  competition. 

For  these  reasons,  section  601  should  be  stricken  from  the  bill,  and 
the  manufacturing  clause  should  be  elmiinated  from  our  copyright 
law. 

With  respect  to  the  Department's  antipiracy  program  in  the  sound 
recording  field,  we  note  the  following  as  areas  where  amendments  are 
desirable : 

Section  506  should  be  amended  to  provide  for  forfeiture  of  infring- 
ing articles  in  criminal  cases  resulting  in  convictions,  and  a  new  sec- 
tion should  be  added  to  provide  for  summary  and  judicial  forfeitures 
in  criminal  cases. 

At  present,  the  Government  has  no  clear-cut  authority  to  destroy 
infringing  articles  which  have  been  seized  or  otherwise  obtained  in 
the  investigation  or  prosecution  of  a  tape  piracy  case  or,  for  that  mat- 
ter, any  criminal  copyright  infringement  case.  This  lack  of  specific 
authority  has  resulted  in  critical  storage  problems  for  many  FBI 
and  U.S.  marshals'  offices  throughout  the  country  and  poses  the  em- 
barrassing possibility  that  the  Government  may  be  ordered  to  return 
known  infringing  articles  tt)  a  convicted  defendant. 

With  proper  amendments,  H.R.  2223  could  eliminate  this  most  seri- 
ous problem.  ^Ye  strongly  urge  the  following  revisions : 

1.  There  should  be  abided  to  section  506  a  new  subsection  which 
should  be  designated  as : 

(b)  When  any  person  is  convicted  of  any  violation  of  subsection  (a),  the  court 
in  its  judgment  of  conviction  shall,  in  addition  to  the  penalty  therein  prescribed, 
order  the  forfeiture  and  destruction  or  other  disposition  of  all  infringing  copies 
or  phonorecords  and  all  implements,  devices,  equipment  or  other  articles  of  what- 
ever kind  used  or  intended  to  be  used  in  the  manufacture,  use,  or  sale  of  such 
infringing  copies  or  phonorecords. 

Present  subsections  (b),  (c),  and  (d)  need  to  be  redesignated  as 
subsections  (c),  (d),and  (e), respectively. 

A  conforming  amendment  should  be  made  to  title  18,  United  States 
Code,  section  2318,  so  that  it  reads  as  follows : 

2318. 

(a)  (present  section  2318) 

(b)  When  any  person  is  convicted  of  any  violation  of  subsection  (a) , 
the  court  in  its  judgment  of  conviction  shall,  in  addition  to  the  penalty 
therein  prescribed,  order  the  forfeiture  and  destruction  or  other  dis- 
position of  all  counterfeit  labels  and  all  articles  to  which  counterfeit 
labels  have  been  affixed  or  which  were  intended  to  have  had  such  labels 
affixed. 

(c)  Except  to  the  extent  they  are  inconsistent  with  the  provisions  of 
this  title,  all  provisions  of  section  (new  forfeiture  section  decribed  be- 
low), title  17,  United  States  Code,  are  applicable  to  violations  of  sub- 
section (a). 

2.  A  new  section  should  be  added  reading  as  follows : 

(a)  All  copies  or  phonorecords  manufactured,  reproduced,  distrib- 
uted, sold,  or  otherwise  used,  intended  for  use,  or  possessed  with  in- 
tent to  use  in  violation  of  section  506(a),  and  all  plates,  molds,  mat- 
rices, masters,  tapes,  film  negatives,  or  other  articles  by  means  of  wliich 
such  copies  or  phonorecords  may  be  reproduced,  and  all  electronic,  me- 
chanical, or  other  devices  for  manufacturing,  reproducing,  assemblings 


137 

using,  transporting,  distributing,  or  selling  such  copies  or  phono- 
records  may  be  seized  and  forfeited  to  the  United  States. 

(b)  All  provisions  of  law  relating  to  (1)  the  seizure,  summary  and 
judicial  forfeiture,  and  condemnation  of  vessels,  vehicles,  merchandise, 
and  baggage  for  violations  of  the  customs  laws  contained  in  title  19, 
United  States  Code,  (2)  the  disposition  of  such  vessels,  vehicles, 
merchandise,  and  baggage  or  the  proceeds  from  the  sale  thereof,  (3) 
the  remission  or  mitigation  of  such  forfeiture,  (4)  the  compromise  of 
claims,  and  (5)  the  award  of  compensation  to  informers  in  respect 
of  such  forfeitures,  shall  apply  to  seizures  and  forfeitures  incurred, 
or  alleged  to  have  been  incurred,  under  the  provisions  of  this  section, 
insofar  as  applicable  and  not  inconsistent  with  the  provisions  of  this 
section;  except  that  such  duties  as  are  imposed  upon  the  collector  of 
customs  or  any  other  person  with  respect  to  the  seizure  and  forfeiture 
of  vessels,  vehicles,  merchandise,  and  baggage  under  the  provisions 
of  the  customs  laws  contained  in  title  19  of  the  United  States  Code 
shall  be  performed  with  respect  to  seizure  and  forfeiture  of  all  articles 
described  in  subsection  (a)  by  such  officers,  agents,  or  other  persons  as 
may  be  authorized  or  designated  for  that  purpose  by  the  Attorney 
General. 

Proposed  section  114  should  be  amended  to  provide  for  the  copy- 
right owner  of  a  sound  recording  to  have  the  right  to  make  derivative 
works  or  it  should  be  amended  to  clarify  that  persons  other  than  the 
copyright  owner  do  not  have  such  a  right  absent  consent  of  the  copy- 
right owner,  notwithstanding  the  fact  that  the  sound  recording 
copyright  owner  would  have  no  such  right. 

Section  114  limits  the  specific  rights  of  a  sound  recording  copyright 

owner  to  those  granted  to  copyright  owners  by  parts  (1)  and  (3)  of 

section  106.  That  is,  sound  recording  copyright  owners  have  the  right : 

( 1 )  To  reproduce  the  copyrighted  work  in  copies  or  phonorecords ; 

and 

(3)  To  distribute  copies,  et  cetera. 

The  right  to  prepare  derivative  works  based  on  the  copyrighted 
work  (part  (2)  of  section  106)  is  withheld  from  a  soimd  recording 
copyright  owner  despite  section  103  which  states  that  such  works  are 
copyrightable  and  despite  the  fact  that  sound  recording  copyright 
owners  are  entitled  to  make  and  copyright  derivative  works  under 
present  law,  17  U.S.C.  §  7.  There  is  a  real  possibility  that  an  unauthor- 
ized duplicator  who  made  a  "derivative"  work  by  slightly  altering 
the  original  copyrighted  sound  recording  would  claim  that  he  did  so 
legally  since  the  copyright  owner  is  given  no  exclusive  right  to  make 
derivative  works. 

This  potential  legal  problem  could  be  eliminated  by  including  part 
(2)  of  section  106  in  the  list  in  section  114  of  exclusive  rights  granted 
to  a  sound  recording  copyright  owner — an  action  which  would  grant 
to  sound  recording  copyright  owners  no  more  rights  than  they 
presently  possess. 

Section  506  should  be  amended  accordingly  to  include  part  (2)  of 
section  106. 

A  third  area  for  concern  is  proposed  section  301  (pages  32-33), 
subparagraph  (b) ,  which  states : 

Nothing  in  this  title  annuls  or  limits  any  rights  or  remedies  under 
the  common  law  or  statutes  of  any  State  with  respect  to : 

57-786— 76— pt.  1 10 


138 

(3)  Activities  violating  rights  that  are  not  equivalent  to  any  of  the 
exclusive  rights  within  the  general  scope  of  copyright  *  *  *  includ- 
ing breaches  of  contract,  breaches  of  trust,  invasion  of  privacy,  defa- 
mation, and  deceptive  trade  practices  *  *  * 

We  believe  this  langTiage  could  be  read  as  abrogating  the  antipiracy 
laws  now  existing  in  29  States  relating  to  pre-February  15,  1972, 
sound  recordings  on  the  grounds  that  these  statutes  proscribe  activities 
violating  rights  "equivalent  to  *  *  *  the  exclusive  rights  within  the 
general  scope  of  copyright  *  *  *."  . 

Certainly  such  a  result  cannot  have  been  intended  for  it  would 
likely  affect  the  immediate  resurgence  of  piracy  of  pre-February  15, 
1972,  sound  recordings.  [Note :  In  any  event,  there  would  be  no  effect 
on  sound  recordings  produced  after  February  15,  1972,  since  it  would 
appear  that  the  States  cannot  constitutionally  enforce  their  antipiracy 
laws  against  the  unauthorized  duplication  of  these  later  recordings.] 

We  therefore  urge  that  section  301  (b)  be  amended  to  include  a  new 
subsection  (4)  as  follows: 

(4)  Sound  recordings  fixed  prior  to  February  15. 1972. 

Proposed  section  506(a)  should  be  amended  to  correct  the  disparity 
of  sanctions  between  second-time  infringers  of  sound  recording  and 
motion  picture  copyrights  and  second-time  infringers  of  other 
copyrights.  ^ 

As  written,  section  506(a)  provides  for  a  maximum  $10,000  fine  and 
3  years  imprisonment  for  second-time  infringers  of  all  copyrights  but 
sound  recording  and  motion  picture  copyrights.  Infringers  of  these 
latter  two  categories  are  subject,  upon  conviction  of  a  seco]id  offense, 
to  a  maximum  fine  of  $50,000  and  2  years  imprisonment.  We  suggest 
that  these  latter  infringements  are  sufficiently  serious  to  warrant  at 
least  the  same  maximum  imprisonment  for  second  offenders  as  is  ap- 
plicable to  second-time  infringers  of  other  copyrights,  as  well  as  the 
larger  fine.  The  term  of  imprisonment  prescribed  should  therefore  be 
at  least  3  years. 

We  siTpport  the  substitution  of  "for  purposes  of  commercial  advan- 
tage or  private  financial  gain"  for  the  present  recjuirement  in  17 
U.S.C.  104  that,  to  be  criminal,  infringements  must  be  done  "for 
profit."  The  provision  in  present  section  104  for  aiders  and  abettors 
kas  been  removed,  but  these  individuals  will  be  liable  to  prosecution 
under  18  U.S.C.  2. 

From  the  standpoint  of  making  deterrents  meaningful  beyond  the 
financial  deterrent  and  provide  a  penalty  for  those  who  can  "take" 
financial  losses  as  a  cost  of  business,  it  is  recommended  that  a  maxi- 
mum 1-year  term  of  imprisonment  be  included  in  the  sanctions  under 
proposed  sections  116(d)  and  506(b),  (c),  and  (d),  all  of  which 
are  provisions  the  Department  supports. 

We  also  note  that  section  115,  subparagraph  (a)  (1) ,  states  explicitly 
and  with  clarity  what  four  courts  of  appeals  have  ruled  is  the  scope 
of  compulsory  licensing  under  present  law,  namely,  that  absent  au- 
thorization by  the  owner  of  a  composition  copyright,  the  duplication  of 
a  sound  recording  embodying  a  copyrighted  musical  composition  is  an 
infringement  of  the  composition  copyright  even  though  the  duplicator 
tenders  royalty  payments  and  otherwise  attempts  to  comply  with 
present  compulsory  licensing  provisions.  This  is  contained  in  the  final 
sentence  of  subparagraph  (a)(1),  which  reads : 


139 

A  person  may  not  obtain  a  compulsory  license  for  nse  of  the  (non- 
dramatic  musical)  work  in  the  duplication  of  a  sound  recording  made 
by  another. 

Since  this  prohibition  is  not  limited  to  copyrighted  sound  recordings, 
the  etlect  is  to  prevent  the  operation  of  the  compulsory  license  mecha- 
nism for  making  copies  of  any  sound  recordings  embodying  copy- 
righted musical  compositions.  The  Department  wholeheartedly 
supports  this  provision. 

Section  804  deals  with  procedures  before  the  tribunal  which  deter- 
mine adjustment  of  copyright  royalties  and  their  distribution  under 
specifiecl  sections  of  the  bill.  We  object  to  the  provision  in  subsection 
(e)  of  this  section  that  the  Senate  Committee  on  the  Judiciary  and 
the  House  of  Representatives  Committee  on  the  Judiciary  may  waive  a 
requirement  tliat  a  final  decision  in  each  proceeding  be  rendered  by 
the  tribunal  within  1  year  from  the  certification  of  the  panel  by  the 
Register  of  Copyrights. 

The  constitutional  division  of  duties  among  the  three  principal 
branches  of  the  Governm.ent  places  in  the  Congress  the  legislative  re- 
sponsibilities. However,  once  a  law  has  been  enacted,  it  is  for  the  execu- 
tive branch  to  carry  out  the  intents  and  purposes  of  the  law  as  directed 
by  the  Congress.  In  our  view,  legislation,  once  enacted,  should  not  be 
modified  or  waived  by  actions  of  a  committee  of  the  Congress.  It  is 
suggested  that  if  waiver  of  the  1-year  requirement  is  desirable  under 
particular  circumstances,  these  circumstances  be  generally  outlined  in 
the  bill  and  that  the  tribunal  be  given  authority  upon  good  cause 
shown  to  extend  the  period  of  time  for  rendering  decisions. 

Of  particular  concern  to  this  Department  is  the  new  form  of  copy- 
right protection  provided  by  title  II  of  the  bill. 

This  new  form  of  protection  is  a  hybrid  between  design  patents,  35 
U.S.C.  171-173,  issued  for  a  period  of  up  to  14  years  by  the  Patent 
Office  for  new,  original  and  ornamental  designs  of  articles  of  manu- 
facture and  the  copj-right  laws  which  provide  for  registration  and 
issuance  of  certificates  of  copyrights  for  the  writings  of  authors.  The 
new  protection  that  is  provided  under  the  bill  is  not  presently  avail- 
able under  the  copyright  laws  and  can  only  be  obtained  through  a  de- 
sign patent  after  an  examination  procedure  which  determines  whether 
the  ornamental  design  meets  the  criteria  of  patentability,  including 
unobviousness  in  view  of  the  prior  art,  as  provided  by  35  U.S.C.  102, 
103. 

While  the  protection  period  as  proposed  for  the  new  type  of  orna- 
mental design  protection  is  only  a  maximum  of  10  years  as  compared 
with  the  maximum  of  14  years  available  for  a  design  patent,  it  is 
granted  without  the  need  of  meeting  the  novelty  and  unobviousness 
requirements  of  the  patent  statute. 

A  threshold  consideration  before  finding  that  the  needs  are  such 
that  this  new  type  of  protection  should  be  available  is  whether  the 
benefits  to  the  public  of  such  protection  outweigh  the  burdens.  We 
believe  that  insufficient  need  has  been  shown  to  date  to  justify  removing 
from  the  public  domain  and  possible  use  by  others  of  the  rioflits  and 
lienefits  proposed  under  the  present  bill  for  such  ornamental  designs. 
We  beliove  that  design  patents,  as  are  granted  today,  are  as  far  as 
the  public  should  .q-o  to  grant  exclusive  rights  for  ornamental  designs 
of  useful  articles  in  the  absence  of  an  adequate  showing  that  the  new 


140 

protection  will  provide  substantial  benefits  to  the  general  public 
which  outweigh  removing  such  designs  from  free  public  use. 

While  it  has  been  said  that  the  examination  procedure  in  the  Patent 
Office  results  in  serious  delays  in  the  issuance  of  a  design  patent  so  as  to 
be  a  significant  problem  and  damaging  to  "inventors''  of  ornamental 
designs  of  useful  articles,  the  desirable  free  use  of  designs  which  do  not 
rise  to  patentable  invention  of  ornamental  designs  of  useful  articles 
are  believed  to  be  paramount. 

If  the  contribution  made  to  the  public  by  the  creation  of  an  orna- 
mental design  of  a  useful  article  is  insufficient  to  rise  to  patentable 
novelty,  the  design  should  not  be  protected  by  the  law.  The  Depart- 
ment of  Justice  has  consistently  opposed  legislation  of  this  character. 

To  omit  Federal  statutory  protection  for  the  form  of  a  useful  object 
is  not  to  deny  the  originator  of  that  form  any  remedy  whatsoever.  If 
he  can  prove  that  competitors  are  passing  off  their  goods  as  the 
originator's  by  copying  the  product's  design,  he  may  bring  an  unfair 
competition  action  against  such  copyists.  Crescent  Tool  Go.  v.  KWborn 
&  Bishop  Co.,  247  Fed.  299  (C.  A.  2  1917).  See,  also.  Sears,  Roehuch 
(£'  Go.  V.  Stiff  el  Co.,  376  U.S.  225  (1964),  and  Gompco  Corp.  v.  Day- 
Brite  Lighting,  Inc.,  376  U.S.  234  ( 1964) . 

Quite  apart  from  our  opposition  to  the  merits  of  title  II,  we  also 
oppose  enactment  of  the  design  protection  provisions  of  this  bill  which 
would  provide  a  new  class  of  actions  against  the  United  States  since  the 
bill  proposes  to  amend  section  1498(a)  to  add  the  new  type  of  design 
copyrights  to  the  remedies  available  to  inventors  against  the  United 
States  who  have  been  issued  U.S.  patents  when  they  are  used  by  the 
United  States  without  authorization  of  the  owner. 

For  example,  by  amending  section  1498  (a)  in  this  waj^,  the  Congress 
will  be  creating  a  completely  new  problem  area  fraught  with  difficulties 
for    Government    procurement. 

Government  contractors  who  "reverse  engineer"  alleged  trade  secrets 
in  bidding  competitively  for  Government  contracts  would  now  b& 
faced  with  the  necessity  of  designing  around  the  "packaging  looks"  of 
a  product  covered  by  a  design  copyright  which  may  not  rise  to  the 
stature  of  patentable  novelty  under  the  patent  laws.  Thus,  the  "non- 
utilitarian  looks"  of  a  vehicle  which  may  not  be  protectable  as  a  design 
patent  would  be  given  copyright-type  protection  under  the  bill. 

We,  therefore,  strongly  oppose  the  new  type  of  protection  proposed 
by  title  II  of  the  bill. 

Section  1498(a)  is  also  amended  to  provide  for  the  first  time  for 
suits  against  the  United  States  for  unauthorized  use  of  inventions,, 
whether  patented  or  unpatented. 

Thus,  it  would  appear  to  permit  a  suit  based  on  a  trade  secret  con- 
taining an  unpatented  invention.  This  also,  we  strongly  oppose  as 
inconsistent  with  limiting  claims  against  the  United  States  in  28 
U.S.C.  1498  to  those  recognized  by  the  patent  and  copyright  laNvs.  No 
adequate  showing  has  been  made  that  this  type  of  protection,  on 
balance,  is  in  the  public  interest. 

The  provision  in  section  220  whereby  simultaneous  suit  can  be  filed 
against  the  Administrator  who  carries  out  the  provisions  of  title  II, 
section  230,  and  an  alleged  infringer  of  the  design  in  that  it  subjects 
an  alleged  infringer  to  suit  in  the  same  action  even  though  the  thresh- 
old question  whether  a  certificate  can  issue  under  the  provisions  of 


141 

the  law  lias  not  been  decided  as  between  the  Administrator  and  the 
applicant  for  registration  is  believed  undesirable.  While  it  is  not 
likely  that  the  issuance  of  certificates  of  registration  will  be  frequently- 
refused  if  certain  basic  requisites  of  applications  are  met,  neverthe- 
less, if  a  situation  should  arise  of  a  refusal  of  issuance  of  a  certif- 
icate of  registration  by  an  Administrator,  this  should  require  a 
separate  and  distinctive  action  to  secure  issuance  thereof,  especially 
since  governmental  functions  should  not  normally  be  mixed  with 
the  proprietary  enforcement  functions  of  courts  in  adjudicating  pri- 
vate rights  and  remedies. 

Certain  technical  corrections  appear  indicated  in  title  II  as  follows : 

Page  66,  lines  22  and  23  appear  reversed. 

Page  73,  line  22,  "Section  311"  should  read  "Section  211." 

Page  73,  line  26,  "mortgage"  should  read  "mortgagee." 

Mr.  Kastenmeiek.  Thank  you.  I  had  difficulty  understanding  this. 
What  you  are  referring  to  by  using  the  term  fair  use  is  a  proposal 
that  we  remove  the  uncertainty  in  connection  with  the  present  lan- 
guage in  the  bill;  your  suggestion  does  not  substantively  change  the 
construction  of  the  bill,  bu^  is  more  or  less  a  clarification  of  it,  in  an 
attempt  to  remove  the  uncertainty  ? 

Mr.  GoLDBLOOM.  I  believe  that  is  right. 

Mr.  Kastenmeier.  With  respect  to  the  term,  of  course,  you  clearly 
opposed  the  term  proposed  in  the  legislation.  Why  did  the  Department 
of  Justice  propose  to  change  the  term  of  50  years  to  56  or  life  ?  In  other 
words,  you  perceive  that  there  was  an  inequity  on  the  part  of  authors 
who  might  seek  terms  for  life  or  some  other  terms  other  than  what  is 
present  in  the  law  ? 

ISlr.  GoLDBLOOM.  To  the  extent  that  it  may  be  urged  that  the  present 
term  does  not  fully  protect  an  author  who  may  live  a  long  life  and 
lias  created  a  copyrighter's  work  in  his  early  years.  We  believe  that  in 
constitutional  concept,  furnishing  this  protection  to  authors  for  their 
creations,  that  the  present  law  may  very  well  not  be  sufficient  to  pro- 
tect that  interest.  We  feel,  however,  that  the  bill  as  drafted  goes  far 
beyond  the  requirement  or  the  need  to  protect  authors  or  their  crea- 
tions. For  that  reason  we  would  lengthen  the  56-year  term  to  the  ex- 
tent that  it  may  last  during  the  duration  of  the  lifetime  of  the  par- 
ticular author, 

Mr.  Kastenmeier.  Had  you  wondered  or  determined  why  the  rest  of 
the  world  had  gone  to  a  life  plus  50  at  some  point  during  the  codifica- 
tion of  their  copyright  laws  ? 

Mr.  GoLDBLOOM.  We  laiow  they  have  gone  that  way.  They  have,  we 
believe,  different  considerations  that  they  pursue  in  furnishing  this 
type  of  protection. 

Mr.  Kastenmeier.  How  would  theirs  be  different  from  our  own  ?  It  is 
a  very  important  point. 

Mr.  GoLDBLOOM.  Well,  we  think  that  our  own  considerations  flow 
from  constitutional  provisions  of  the  concept  of  thereby  protecting 
authors  and  to  promote  and  advance  science  and  useful  arts  for  a 
limited  time  under  the  concept  as  expressed  in  the  constitution. 

In  our  view  a  term  which  extends  for  56  years  or  the  lifetime  of  the 
autlior,  whichever  is  greater,  would  serve  those  constitutional  goals 
of  a  limited  time,  which  is  a  very  clear  constitutional  concept.  Cer- 
tainly, 150  years  in  our  view  is  an  extended  period  of  time  considerably 
above  the  authority  granted. 


142 

Mr.  Kastenmeier.  Do  you  have  any  jurisdiction  or  a  single  authority 
that  says  the  contemplation  of  the  franiers  of  the  Constitution  is  con- 
trary to  what  the  bill  proposes  ? 

Mr,  GoLDBLOOM.  It  is  only  our  reading  of  the  Constitution. 

Mr.  IvASTEXMEiER.  Would  you  answer  the  question  of  whether  you 
found  or  looked  for  an  authority  ? 

Mr.  Goi.DKLooM.  We  have  looked,  but  haven't  foimd  any. 

Mr.  Kastenmeier.  It's  all  on  the  other  side  ? 

]\Ir.  G0LDBL003I.  I  don't  know  that  it's  there  either. 

Mr.  Kastenmeier.  We  have  concluded  that  the  State  Department 
and  most  nations  of  the  Earth  are  out  of  tmie  with  the  contempla- 
tion of  the  Founding  Fathers? 

Mr,  GoEDBLooir.  I  don't  believe  that  most  nations  of  the  world  are 
enacting  legislation  on  the  basis  of  the  Constitution  of  the  United 
States, 

Mr.  Kastenmeier.  In  describing  the  effect  of  the  term,  I  think  you 
said  it  has  the  effect  of  doubling  the  present  term,  the  present  term 
being  50  years.  It  would  make  it  112  if  you  subtract  the  50.  It  means 
that  you  are  suggesting  that  after  creation,  the  average  author  lives 
62  years ;  is  that  correct  ? 

]\Ir.  GoLDBLOO]\r,  I  don't  believe  we  intended  to  be  precise  in  mathe- 
matics ;  it  was  an  appi-oximate  figiire  that  we  were  trying  to  get. 

Mr.  Kastenmeier.  To  me  it  doesn't  even  seem  approximate.  I  don't 
mean  to  nitpick,  but  I  think  the  effect  is  somewhat  overdescribed  in 
saying  that  it  doubled  the  term.  Perhaps  it  might  increase  it  by  a 
probable  figure  of  50  percent  but  it  scarcely  doubles  it. 

I  think  you  are  entitled  to  take  whate\'er  point  of  view  the  Depart- 
ment desires  to  in  that  connection  and  I  would  say  that  the  burden  is 
on  those  proposing  to  change,  to  justify  the  change.  I  think  that  is  the 
case  and  to  that  extent  you  are  probably  not  to  be  criticized. 

In  title  II,  which  covers  ornamental  design,  is  it  your  point  of  view 
that  what  is  doiie  is  appropriate  or  is  it  your  point  of  view  that 
nothing  should  be  done  with  respect  to  that  which  is  proposed  to  be 
covered  in  title  II  ? 

Mr.  Goldbloom.  It  is  our  point  of  view  that  nothing  should  be  done. 

Mr.  Kastenmeier.  I'm  going  to  yield  to  the  gentleman  from  New 
York,  Mr,  Pattison.  I  caught  you  bv  surprise  that  time,  didn't  I? 

Mr.  Pattison.  You  surely  did.  I  am  interested  also  in  his  opinion 
on  the  term  and  I  also  respect  your  opinion  that  it  should  be  some- 
thing other  than  life  plus  50,  but  I  do  wonder  if  you  are  serious  about 
that,  being  that  we  are  somehow  constitutionally  constrained  for  some 
period  of  time  ? 

It  is  limited  as  opposed  to  unlimited.  Certainly,  it  could  be  life  plus 
50  or  1.000.  Constitutionally,  couldn't  we  do  anything  we  want? 

Mr.  Goldbloom.  Sure.  My  statement  is  not  to  say  that  there  is  any 
limitation  but  the  provision  is  to  promote  and  advance  science  and  the 
useful  arts  and  for  the  protection  of  authors. 

Mr.  Paitison.  You  can  protect  them.  We  generally  operate  with 
notions  against  having  rights  fixed  in  perpetuity.  Property  rights  cer- 
tainly are  not  fixed  that  way.  In  other  words,  after  our  death  we  can 
enjoy  still  those  rights  in  essence. 

Mr.  Goldbloom.  There  are  limitations  on  that  generally  in  the  law 
but  we  have  here  other  considerations.  Those  considerations  are,  as 
I  say,  the  promotion  of  science  and  the  useful  arts  and  the  protection 


143 

of  authors.  If  we  focus  on  these,  we  find  in  the  Constitution  a  sense  of 
not  having  it  for  a  very  extensive  term. 

Mr.  Pattisox.  But,  is  there  not  any  kind  of  definitional  problem ; 
you  don't  think  it  defines  anything  else  than  what  is  proposed  in  this 
bill? 

Mr.  GOLDBLOOM.   No. 

[Mr.  Pattison.  I'm  interested  in  the  fair-use  provision  that  you  have 
remarked  on.  It  seems  to  me  you  are  proposing  as  to  nonprofit  institu- 
tions that  there  be  limited  use  of  reproduction.  In  other  words,  schools, 
libra^ries,  and  things  like  that  can  reproduce  without  any  considera- 
tion; If  you  want  50  copies  for  your  class,  then  without  having  to  buy 
50  copies  of  the  journal,  you  can  go  ahead  and  reproduce  it  and  that  is 

OK? 

Mr.  GoLDBLOOM.  Yes. 

Mr.  PArnsoN.  And  that  is  related  to  nonprofit  organizations? 

Mr.  GoLDBLOOM.  Yes,  educational  activities. 

Mr.  Pattison.  AYlien  I  think  in  terms  of  the  fact  that  many  things 
are  written  for  that  market,  how  do  you  respond  to  that;  in  other 
words,  if  something  is  designed  to  be  used  in  an  educational  institu- 
tion which  is  normally  nonprofit,  how  do  you  protect  that  author? 

Mr.  GoLDBLOOM.  This  is  not  designed  to  make  unlimited  reproduc- 
tions of  copyrighted  material,  but  it  is  designed  to  expand  and 
broaden. 

Mr.  Pattison.  Doesn't  it  make  it  unlimited  when  it  is  used  in  non- 
profit institutions  ? 

Suppose  I  am  writing  a  school  book  and  they  are  the  only  people 
that  are  going  to  use  it.  I  am  not  going  to  sell  my  book  in  the  local 
drugstore.  The  book  I  am  writing  is  for  the  use  of  schools  which  are 
almost  always  theoretically  nonprofit.  How  do  I  protect  that  author? 

Isn't  it  true  that  under  your  remarks  you  would  eliminate  that  pro- 
tection ? 

Mr.  GoLDBLOOM.  Well,  we  think  it  could  be  protected  perhaps  by 
contractual  rights  between  the  publisher  and  the  user.  It  is  not  our 
purpose  to  support  unlimited  copying  of  textl^ooks. 

]\fr.  Pattison.  But,  I  think  your  remarks  would  do  that;  I  think 
your  suggestion  would  actually  do  that,  wouldn't  it?  You  exempt  the- 
fair-use  provisions  for  educational  use  by  nonprofit  institutions. 
Therefore,  if  somebody  reproduces  a  textbook  and  distributes  it  to 
their  class,  even  1,000  copies,  that  would  not  be  prohibited  under  the 
act  as  changed  by  your  suggestion  ? 

Mr.  GoLDBLOOM.  I  do  not  believe  that  we  would  want  this  construed 
to  allow  unlimited  reproduction  of  textbooks  where  textbooks  are 
written  for  purposes  of  education. 

Mr.  Pattison.  On  the  area  of  CATV,  I  take  it  your  suggestion  as 
to  the  CATV  system  within  the  normal  grade  B  or  normal  viewing 
area  where  the  signal  reaches  users,  th.at  the  system  would  not  have 
to  pay  anybody  for  that.  As  for  importation  of  signals  fi'om  outside 
that  contour  you  would  approve  of  them  paying  something? 

Mr.  GoLDBLOOM.  Yes.  It  is  only  where  there  is  reproduction  of  the 
signal  within  the  local  service  area. 

Mr.  Pattison.  They  then  would  not  have  to  pay  for  that. 

Mr.  GoLDBLOOM.  Yes,  the  importation  into  that  area  or  exportation 
outside  of  that  area  would  have  to  be  compensated  for. 


144 

Mr.  PATTisoisr.  Thank  you. 

Mr,  lO.STENMEiER.  The  gentleman  from  New  York,  Mr.  Badillo. 

Mr.  Badillo.  No  questions. 

Mr.  IvASTENMEiER.  The  gentleman  from  Massachusetts. 

Mr.  Drinan.  Thank  you,  Mr.  Chairman. 

May  I  ask  you,  sir,  by  what  process  does  the  Department  of  Justice 
come  to  these  conclusions  and,  who  is  the  "we"  you  keep  referring  to  ? 

Mr.  GoLDBLOOM.  In  our  statement,  broadly,  we  consulted  various 
segments  of  the  Department's  divisions  that  have  interests  concerning 

this  bill. 

Mr.  Drinan.  From  what  premise  did  you  operate ;  why  are  you  m- 
f erring  something  that  is  all  within  a  legislative  judgment?  Is  it  your 
premise  that  the  first  amendment  of  the  Constitution  will  provide 
that  protection,  or  what  ? 

Mr.  GoLDBLOOM.  We  have  different  divisions  within  the  Department 
that  have  an  interest  in  this.  The  Antitrust  Division  has  broad  in- 
terests in  the  administration  of  the  antitrust  laws.  The  Criminal  Divi- 
sion has  an  interest  in  the  bill  to  the  extent  that  there  are  criminal 
provisions. 

Mr.  Drinax.  An  interest;  what  do  you  mean  by  that?  From  what 
premise  do  you  operate;  why  are  you  here?  In  other  words,  do  you 
want  a  law  that  is  easy  to  execute  or  what  is  your  major  premise? 

Mr.  GoLDBLOOM.  The  Antitrust  Division  administers  the  antitrust 
laws  and,  to  the  extent  they  feel  that  the  provisions  in  the  copyright 
law  have  an  effect  upon  their  broad  interest  in  the  economy  of  our 
country,  they  have  set  forth  their  interests  in  this. 

Mr.  JDrixan.  Did  you  testify  in  the  Senate  ? 

Mr.  GoLDBLOOM.  I  personally  did  not  testify. 

Mr.  Drinan.  On  page  24  of  your  statement,  I  have  been  very  inter- 
ested in  the  fact  that  you  mentioned  here  that : 

At  present,  the  government  has  no  clear-cut  authority  to  destroy  infringing 
articles  which  have  been  seized  or  otherwise  obtained  in  the  investigation  or 
prosecution  of  a  tape  piracy  case  or,  for  that  matter,  any  criminal  copyright 
infringement  case.  This  lack  of  specific  authority  has  resulted  in  critical  storage 
problems  for  many  FBI  and  U.S.  Marshal's  oflSces  throughout  the  country  and 
poses  the  embarrassing  possibility  that  the  government  may  be  ordered  to 
return  known  infringing  articles  to  a  convicted  defendant. 

Do  you  have  the  power  to  seize  them  ? 

Mr.  Mtjrphy.  We  have  the  power  to  seize  them  as  evidence  for  ^do- 
lations  of  the  law  pursuant  to  a  warrant,  either  pursuant  to  a  warrant 
of  arrest  or  to  a  search  warrant.  The  problem  arises  when  we  seize 
substantial  quantities  of  these  things  that  are  possessed  with  the  in- 
tent to  violate  the  law,  and  what  to  do  with  them.  There  is  no  clear- 
cut  authority,  and  we  stress  the  clear  cut  because  there  is  provision 
m  the  copyright  law  for  the  destruction  of  materials  that  are  infringe- 
ment oriented. 

Frankly,  of  course,  until  the  enactment  of  Public  Law  92-140,  the 
privilege  of  seeking  the  destruction  of  those  materials  alluded  only 
to  the  copyright  owner.  We  think  by  the  enactment  of  Public  Law  92- 
140  the  Federal  Government  has  been  vested  with  the  authority  for  for- 
feiture and  destruction  of  such  infringing  materials.  But,  in  order  to 
make  it  absolutely  clear  that  that  right  exists  in  the  Federal  Govern- 
ment, we  propose  this  forfeiture  provision. 


;145 

Mr.  Drixan.  You  suggest  on  page  24  that  the  FBI  and  U.S.  mar- 
shal's office  are  posed  with  the  embarrassing  possibility  that  the  Gov- 
ernment may  be  ordered  to  return  known  infringing  articles  to  a  con- 
victed defendant.  Tell  me  more  about  that;  can  anyone  sue? 

Mr.  MuRrHY.  Yes,  sir,  some  have  sought  orders  from  the  court. 

Mr.  Drinan.  Why  would  that  be  embarrassing  if  you  are  just  doing 
what  the  law  gives  you  authority  to  do  ? 

Mr.  Murphy.  We  don't  say  it  is  embarrassing  to  do  what  the  law 
provides  for,  but  that  there  are  erroneous  judgments  on  the  part  of 
courts  that  have  resulted  in  the  return  of  materials  to  the  violator. 

Mr.  Drinan.  But  you  want  the  authority  over  all  of  the  equipment 
to  be  able  to  destroy  it  and  never  return  it  and  not  give  any  compensa- 
tion for  it  when  some  of  that  could  be  used 

Mr.  JNIuRPHY.  May  I  point  out  that  the  copyright  owner  has  that 
authority  right  now,  to  seize  the  infringing  materials. 

]VIr.  Drinan.  That  is  an  entirely  different  question. 

Mr.  Murphy.  Well,  it  is  similar,  it  seems  to  me.  These  are  mate- 
rials that  are  used  and  possessed  with  the  intent  to  violate  the  law. 

Mr.  Drinan.  Once  again  you  are  telling  me,  you  are  stating  that 
the  Government  is  continuing  to  possess  these  things  when  the  owners 
may  well  come  under  the  law,  have  the  right  to  take  possession  of  the 
infringing  articles. 

Is  there  anything  here,  sir,  any  policy  position  you  take  on  the 
question  of  performance  royalties  ? 

As  you  know,  the  Senate  is  deeply  divided  on  this.  Is  there  anything 
in  your  statement  as  to  any  position  that  the  Department  of  Justice 
takes  on  that? 

Mr.  GOLDBLOOM.  No. 

Mr.  Drinan.  You  have  taken  a  position  on  other  questions  here. 
How  come  you  missed  this  very  fundamental  one  that  this  committee 
has  to  decide  ? 

Mr.  GoLDBLOOM.  We  attempted  to  limit  our  position  to  those  areas 
of  interest  that  the  Department  of  Justice  administers  or  represents, 
insofar  as  it  represents  other  Federal  agencies  and  departments. 

Mr.  Drinan.  I  yield  back. 

Mr.  Kastenmeier.  The  gentleman  from  California,  Mr.  Danielson. 

Mr.  Danielson.  Could  you  tell  me,  sir,  what  is  the  nature  of  the 
property  rights  in  copyrighting,  in  this  context.  Is  my  copyright  and 
my  property  right  subject  to  execution  and  sale  under  a  valid  judg- 
ment of  a  court  ? 

Mr.  GoLDBLOOM.  I  believe  it  is. 

Mr.  Danielson.  Could  it  be  pledged  as  security  and  subsequently 
my  security  interest  be  foreclosed  ? 

Mr.  GoLDBiiOOM.  I  believe  it  could  be. 

Mr.  Danielson.  In  other  words,  it  could  be  taken  from  me  by  law  ? 

Mr.  GoLDBLOOM.  Yes ;  depending  on  the  State  law. 

Mr.  Danielson.  Under  section  104(c)  the  State  Department  repre- 
sentative pointed  out  that  it  favored  section  104(c)  which  would  tend 
to  prohibit  the  enforcement  of  the  valid  judgment  of  a  foreign  court 
as  to  the  copyright  of  one  of  its  nationals  within  the  United  States ; 
are  you  willing  to  comment  on  that  ? 

Mr.  GoLDBLOOM.  I  would  prefer,  if  I  might,  to  supplement  the  record 
on  that.  We  have  not  had  an  opportunity  before  today  to  see  the  State 


146 

Department's  position  on  that  and  the  Department  of  State  may  very 
well  have  a  position  on  that. 

Mr.  Danielson.  I  only  make  a  request.  I  don't  know  some  of  the 
answers,  but  I  am  seeking  them  and  any  help  that  you  could  provide 
I  would  appreciate.  I  personally  have  a  problem;  1  don't  see  how  we 
•can  hang  on  to  our  comity  with  other  nations  if  we  refuse  to  recognize 
the  judgment  of  their  courts  whether  we  agree  or  not.  That  poses  a 
problem  for  me  and  I  would  appreciate  any  information  you  can  get 
for  me. 

Mr.  GoLDBLOOM.  I  will  try. 

Mr.  Danielson.  On  the  subject  of  cable  television,  you  stated  on 
page  16  that  you  feel  that  secondary  transmission  should  be  com- 
pletely royalty  free  and  free  of  liability  so  long  as  it  is  within  the  local 
service  actually,  because  they  are  just  filling  in  blind  spots  and  miprov- 
ing  transmission? 

Mr.  GoLDBLOOM.  Yes. 

Mr.  Danielson.  And  then  you  conclude  that  such  transmission  does 
not  impair  the  primary  transmitter's  market  and,  in  talking  about 
the  broadcasting  stations,  in  fact  you  say  it  enhances  it  and  I  concur. 

Then  you  say  the  copyright  holder  is  helped  and  not  hurt  by  such 
activity.  What  is  the  rationale  for  that  '^ 

ISIr.  GoLDBLooM.  To  the  extent  that  there  might  be  an  agreement 
between  a  copyright  holder  and  the  broadcaster  concerning  the  use 
■of  the  material,  that  the  ability  to  enhance  the  viewing  and  the  num- 
bers of  viewers  within  the  local  service  area,  would  seem  to  be  some 
consideration  between  the  parties.  If  it  is  demonstrable,  more  people 
would  have  access  to  this. 

Mr.  Danielson.  Are  you  saying  in  effect  that  when  a  copyright 
owner  enters  into  a  royalty  agreement  with  a  broadcaster,  usually  a 
TV  broadcaster,  that  the  amount  of  royalty  which  is  paid  is  based 
at  least  in  part  upon  the  number  of  viewers  which  the  station  can 
demonstrate  watch  the  program  at  time  7  p.m.,  for  example? 

Mr.  GoLDBLOOM.  It  may  be  something  other  than  royalties  for  the 
copyright;  it  may  just  be  advertising  ability,  the  possibility  of  adver- 
tising a  copyrighted  work. 

Mr.  Danielson.  It  is  something  of  value  to  the  copyright  owner 
whether  it  is  money  or  prestige  or  whatever,  his  sense  of  value  is 
entirely  subjective.  I  understand  that,  but  the  point  is  that  the  com- 
pensation in  my  money  or  money's  worth  to  the  copyright  owner  is 
based  in  part  on  the  numbers  of  viewers? 

]VTr.  GoLDBLOOM.  That  is  correct. 

Mr.  Danielson.  That  is  my  understanding.  All  right,  for  that  rea- 
son T  will  once  ajrain  state  your  conclusion  in  the  last  sentence  of  para- 
graph 1  on  pap-e  17  of  your  statement,  "the  copj'^right  holder  is  helped 
anrl  not  hurt  bv  such  activity." 

"WHiat  thp-  copvrio;ht  owner  <Tets  at  this  consideration  is  greater  or 
less  depending  upon  the  rated  viewing  of  the  program  at  the  time 
of  the  nublication? 

l^^r.  GoLDBLOo:\r.  Tos. 

Mr.  Danielson.  We  are  talking  about  a  secondary  transmission 
"vrithin  the  primarv  viewing  area.  Let  us  take  for  an  example  southern 
rnli^ornia  which  has  our  laro-est  metronolitan  area,  Los  Angeles.  That 
area  is  a  hasin  surrounded  by  a  wall  of  mountains.  It  is  a  lovely  area, 


147 

.'but  you  cannot  get  a  primary  transmission  from  Los  Angeles  because 
of  the  mountains.  Suppose  I  have  a  cable  system  and  I  pick  up  the 
Los  Angeles  broadcast  and  take  it  by  cable  into  the  valley  and  the 
desert  and  distribute  it.  I'm  going  to  call  that,  for  our  purposes  a 
primary  transmission  to  dispose  of  the  secondary  transmission  you 
are  talking  about.  Do  you  feel  there  should  be  an  additional  fee  there  ? 

Mr.  GoLDBLooM.  Yes. 

Mr.  Danielson.  Why? 

Mr.  GoLDBLOOM.  Of  course,  the  whole  subject  of  these  copyright 
laws  has  been  debated  long  and  hard  to  the  extent  that  the  Congress 
has  attempted  through  this  bill  to  accommodate  those  various  inter- 
ests. We  feel  that  it  has  accomplished  Ijeneficially  a  great  deal  because 
there  are  competing  interests  here.  Cable  television  does  have  the 
ability  to  extend  beyond  the  m.ountainous  area  that  you  described, 
something  which  other  systems  are  not  naturally  or  not  normally 
able  to  do. 

JNIr.  Danielsgn-.  Is  there  anything  natural  or  normal  about  the 
primary  transmission:  it  is  a  mechanical  device,  an  electronic  device, 
-a  creation  of  man  which  has  been  out  in  these  areas.  Seriously,  your 
rationale  to  support  your  statement  that  the  copyright  holder  is  helped 
and  not  hurt  by  such  activity  within  the  primary  viewing  area,  does 
it  not  apply  equally  to  the  viewing  over  the  mountains  ? 

Mr.  Goi'dbloom."  Well,  it  does,  but  in  the  context  of  the  world  of 
communications  there  is  a  need  we  feel  to  accommodate  the  interests 
of  both  the  cable  as  well  as  the  copyriglit  owners. 

]Mr.  Daxtelson.  How  would  they  not  be  accommodated  ?  Is  it  not  a 
fact  that  the  royalty  agreement  between  the  copyright  holder  and 
the  broadcasting  station  is  based  in  part  on  the  number  of  viewers 
and,  in  calculating  the  number  of  them,  the  broadcasting  station 
includes  those  who  ai'e  reached  through  the  cable  transmission  on  the 
other  side  of  the  mountain? 

Mr.  Goldbloom.  I  don't  know  that  that  is  necessarily  correct. 

INIr.  Danielson".  Do  you  have  anv  documentation  or  authority  for 
that? 

Mr.  Goldbloom.  I  would  have  to  look  into  that. 

Mr.  Danielsox.  I  don't  expect  you  to  know  answers  on  a  multitude 
of  problems,  but  I  think  you  are  going  to  find  in  the  advertising  busi- 
ness the  rates  that  the  broadcaster  receives  for  advertisements— and 
that  is  what  keeps  him  alive — are  based  on  the  viewers;  the  rate  he 
pays  the  copyright  holder  is  based  on  the  viewers. 

So.  if  you  expand  the  number  of  viewers,  you  are  going  to  expand 
the  advertising  rates  and  the  amount  he  pays  for  his  royalties.  I  think 
you  will  find  that  to  be  the  case.  Assuming  that  is  true,  then  would  not 
that  be  your  rationale  on  secondary  transmission  whether  it  be  over 
the  mountain  or  inside  the  mountain,  if  you  are  applying  that 
rationale  ? 

Mr.  Goldbloom.  I  think  it  would. 

Mr.  Danielsox.  On  fair  use,  Mr.  Pattison  has  brought  out  the 
analogy  of  making  textbooks  for  a  school.  This  poses  a  real  problem 
in  my  mind  yet,  I  am  hoping  it  will  be  cleared  up.  I  am  sure  we  agree 
that  if  the  school  were  to  go  through  a  first-class  printing  operation 
and  reprint,  set  plates,  and  type,  print  and  bind  a  copy  of  a  book,  you 
would  have  an  infringement  and  there  would  be  royalties. 


148 

Then  back  down  one  step  instead  of  doing  the  traditional  photo- 
offset  job,  but  it  be  otherwise  the  same,  I  think  you  wouhT  agree  you 
still  have  a  copyright  violation.  So,  if  you  back  down  to  a  mimeograph 
and  suppose  you  typed  on  a  stencil  and  then  bound  it  with  a  nice, 
hardboard  cover,  et  cetera,  I  think  you  would  still  contend,  and  many 
of  us  would,  that  you  would  still  have  a  violation. 

You  take  the  same  mimeograph,  but  you  don't  bind  it  and  have  just 
loose  sheets  now  you  are  confronted  with  whether  or  not  it  is  a 
copyright  violation  and,  if  you  go  to  Xerox,  now  you  have  two 
questions ;  what  do  you  do  with  that  ? 

I  have  gone  through  this  step  by  step  on  purpose.  I  wonder  if  we 
are  coming  to  grips  with  the  real  issue  ?  Should  we  basically  copyright 
on  the  type  of  mechanical  reproduction  used  or  upon  the  number  of 
copies;  is  it  valid  to  say  it  is  the  use  to  which  they  are  put,  whetlier 
they  go  to  a  nonprofit  school  ?  I  don't  know  if  there  is  a  valid  way  of 
determining  this  and  I  am  seeking  help  because  I  don't  understand  it. 

Are  we  saying  when  we  talk  about  schools  and  churches,  are  we 
saying  we  must  be  good  to  the  nonprofit  organizations?  There  cer- 
tainly isn't  this  consideration  on  brooms  and  buckets  and  typewriters 
and  the  people  who  sell  printed  books  to  the  schools  make  a  profit.  I 
don't  know  the  answer  and  I  want  to  find  out.  Thank  you. 

Mr.  Kastenmeier.  The  gentleman  from  Illinois,  Mr.  Railsback. 

Mr.  Railsback.  On  page  16  of  your  statement,  you  indicate  that 
secondary  transmission  within  the  local  service  area  of  the  primary 
transmitter  finds  the  cable  system  only  filling  gaps  or  improving 
reception  in  the  service  area  of  the  primary  transmitter  and  supple- 
menting the  primar}^  transmission.  Of  course,  the  primary  transmitter 
has  sponsors;  when  the  secondary  transmitter  within  this  area  picks 
up  the  program  does  he  not  also  run  the  commercials  and  wouldn't 
that  have  an  adverse  effect  on  possibly  discouraging  a  prospective 
sponsor  ? 

In  other  words,  I  don't  see  how  that  wouldn't  really  dilute  the 
effectiveness  of  a  sponsored  program. 

Mr.  GoLDBLooM.  I  am  not  certain  specifically  how  the  FCC  rules 
operate,  but  I  believe  they  would  have  to  reproduce  the  program  in  its 
entirety  with  the  sponsored  portions. 

Mr.  DANiELSOisr.  I  am  willing  to  be  corrected,  but  it  is  my  under- 
standing that  when  a  cable  system  is  picked  up  by  a  broadcaster  that 
it  is  transmitted  in  its  entirety  and  they  do  not  excise  the  commercials. 
Therefore,  the  sponsor  gets  the  advertising  over  the  mountain  as 
well  as  inside  of  the  mountain. 

Mr.  Eailsback.  I  see.  First  of  all  in  respect  to  Father  Drinan's 
question,  and  comments,  I  certainly  do  welcome  you;  we  invited  you 
to  testify.  Secondly,  with  respect  to  forfeiture,  aren't  we  talking 
about  record  pirates  who  have  actually  stolen  somebody's  work  ? 

Mr.  GoLDBLOOM.  Yes. 

Mr.  Railsback.  I  just  want  to  conclude  by  saying  that  I  do  not 
find  that  particular  recommendation  draconian.  I  disagree  with  some 
others,  but  I  thank  you. 

Mr.  Kastenmeier.  The  Chair  will  state  that  indeed  you  were  invited 
along  with  the  Justice  Department,  along  with  the  Departments  of 
Commerce,  and  State.  As  a  matter  of  fact,  your  predecessor  appeared 


149 

in  this  room  10  years  ago  on  a  similar  bill  and  you  are  aware  of  that 
lam  sure. 

Mr.  GoLDBLOoM.  Yes. 

Mr.  Kastenmeier.  In  that  connection,  what  was  being  considered 
was  a  similar  bill  and  any  of  the  issues  you  spoke  to  this  morning 
were  expressed  then.  Had  the  views  of  the  Department  of  Justice, 
the  Antitrust  Division  and  any  other  parts  of  that,  changed  or  are 
they  the  same  as  they  were  10  years  ago  with  respect  to  this  bill? 

Mr.  GoLDBLOOM.  I  believe  to  the  extent  that  issues  were  then  in 
existence,  our  position  is  close  to  what  they  were  then.  I  don't  know 
because  we  have  not  examined  each  position  we  took  then  in  light  of 
the  position  we  have  taken  today,  but  I  think  there  is  a  similarity 
and  identity. 

Mr.  Kastenmeier.  Do  I  understand  that  you  regard  as  the  most 
important  issues,  the  issue  of  ornamental  design  in  title  II,  term 
and  the  manufacturing  clause ;  those  are  among  the  more  important 
positions,  issues  as  far  as  the  Department  of  Justice  is  concerned? 

Mr.  GoLDBLOOM.  Yes.  Mr.  Chairman,  and  CATV. 

Mr.  Kastenmeier.  If  the  bill  is  reported  in  its  present  form,  will  it 
be  the  disposition  of  the  Justice  Department  to  oppose  it,  to  recom- 
mend that  the  President  veto  the  bill  ? 

Mr.  GoLDBLOOM.  I  cannot  really  speak  to  that  at  the  moment.  I 
think  there  is  a  different  function  when  one  is  recommending  to  the 
President,  what  he  should  do  with  legislation  from  when  one  appears 
before  the  Congress  while  it  is  contemplating. 

]Mr.  Kastenmeier.  It  is  your  stance  then  that  you  are  making  certain 
recommendations  and  stating  your  positions  on  whether  the  bill 
should  be  passed  or  not  passed ;  that  is  your  reason  for  being  here  ? 

Mr.  GoLDBLOOM.  Yes. 

Mr.  Kastenmeier.  Thank  you  for  your  appearance. 
[The  prepared  statement  of  Mr.  Goldbloom  follows :] 

Statement  of  Irwin  Goldbloom,  Deputy  Assistant  Attorney  General,  Civil 

Division,  Department  of  Justic?e 

Mr.  Chairman:  I  am  pleased  to  respond  to  the  Committee's  invitation  to 
present  the  views  of  the  Department  of  Justice  on  H.R.  2223,  A  Bill  for  the 
General  Revision  of  the  Copyright  Law,  Title  17  of  the  United  States  Code, 
and  for  other  purposes. 

We  are  in  sympathy  with  the  general  purpose  of  Title  I  of  the  Bill,  to  provide 
a  thorough  revision  and  updating  of  the  Copyright  Law,  Title  17,  United  States 
Code.  However,  as  set  out  below,  we  recommend  certain  modifications  in  the 
proposed  revision.  We  oppose  Title  II  of  the  Bill  which  creates  a  new  type  of 
intellectual  property,  a  hybrid  between  a  copyright  and  a  design  patent. 

H.R.  2223  and  its  companion  bill,  S.  22,  are  nearly  identical  with  S.  1361  as 
passed  by  the  Senate  in  the  93d  Congress  on  September  9,  1974.  There  are, 
however,  technical  and  perfecting  amendments  and  changes  required  by  the 
enactment  of  Public  Law  93-573,  providing  for  interim  copyright  extension  and 
increased  penalties  for  tape  piracy.  A  section-by-section  analysis  of  S.  1361 
is  part  of  Senate  Report  No.  93-983,  93d  Cong.,  at  pages  102-228.  Further  details 
as  to  the  history  of  this  copyright  revision  bill  appear  in  the  same  Report 
at  pages  101-103.  The  summary  below  is  specificially  directed  to  features  of  the 
Bill  of  particular  concern  to  this  Department. 

Section  107  relates  to  the  "fair  use"  doctrine.  This  is  fully  discussed  in  Senate 
Report  No.  93-983,  pages  115-120.  The  scope  of  fair  use  in  copying  is  illustrated 
to  include  reproduction  by  a  teacher  or  a  student  of  a  small  part  of  a  work  to 
illustrate  a  lesson  (S.  Report  93-983,  p.  115).  This  example,  therefore,  does  not 
include  reproduction  of  the  entire  work  to  illustrate  a  lesson.  In  determining 


150 

whether  the  use  made  of  a  work  in  a  particular  case  is  a  fair  use,  a  court  is  to. 
consider  as  factors  the  purpose  and  character  of  the  use,  the  nature  of  the  copy- 
righted work,  the  amount  and  substantiality  of  tlie  portion  used  in  relation, 
to  the  copyrighted  work  as  a  whole,  and  the  effect  of  the  use  upon  the  potential 
market  for  or  value  of  the  copyrighted  work.  As  to  the  reproduction  of  entire 
works  for  classroom  use,  the  doctrine  of  fair  use  would  be  applied  "strictly" 
(S.  Kept.  93-983,  p.  117). 

Sections  lOS,  110,  and  111  cover  exemptions  from  liability  for  copyright 
infringement  in  the  fields  of  library  and  archive  reproduction  (Section  108).  the- 
exemption  of  certain  performances  and  displays,  such  as  in  classrooms  in  face- 
to-face  teaching  activities  of  a  nonprofit  educational  institution  (Section  110) 
and  the  retransmission  of  a  primary  transmission  simultaneously  with  the 
primar.v  transmission  or  nonsimultaneously  with  the  primary  transmission  if 
by  a  "cable  system"  outside  defined  geographic  areas  ("secondary  transmissions" 
of  Section  111). 

Section  302  establishes  a  new  term  for  the  duration  of  copyright.  Generally, 
this  is  for  a  term  consisting  of  the  life  of  the  author  and  fifty  years  after  his 
death.  In  the  case  of  joint  works,  the  period  of  fifty  years  commences  upon  the 
death  of  the  last  surviving  author.  For  anonymous  works,  pseudonymous  works,, 
and  works  made  for  hire,  the  copyright  period  is  for  a  term  of  seventy-five  years 
from  the  year  of  its  first  i)ublication,  or  a  term  of  one  hundred  years  from  the 
year  of  its  creation,  whichever  expires  first.  Where  one  or  more  authors  are- 
identified  for  an  anonymous  or  pseudonymou.s  work  before  the  end  of  the  copy- 
right term,  the  longer  period  of  copyright  terminating  fifty  years  after  the  death 
of  the  author  then  applies. 

Secti<m  405  deals  with  the  effect  of  the  omission  of  the  copyright  notice.  Section- 
411  covers  infringement  actions  in  certain  situations. 

Section  506  contains  special  provisions  applying  to  persons  who  infringe  will- 
fully and  for  purposes  of  commercal  advantage.  Witli  respect  to  copyright  in  a 
.sound  recording,  for  the  first  such  offense,  a  person  is  fined  not  more  than. 
$25,000  or  imprisoned  for  not  more  than  one  year,  or  both.  For  any  subsequent 
offense  a  person  is  fined  not  more  than  $50,000  or  imprisoned  not  more  than 
two  years,  or  both.  Section  507  provides  a  three-year  statute  of  limitations  for 
both  criminal  proceedings  pursuant  to  provisions  of  the  Bill  after  the  cause  of 
action  arose  (under  the  provisions  of  Sections  116  and  506)  and  for  civil  actions 
after  the  claim  accrued. 

Section  601  affords  preferential  protection  to  pulilishers  and  printers  of  the 
United  States  and  Canada  (Report  93-983,  pp.  195-200). 

Sections  801-809  are  concerned  with  the  Register's  duties  to  collect  royalties 
and  make  determinations  concerning  the  adjustment  of  copyright  royalty  rates 
for  certain  uses  where  compulsory  licenses  are  provided  by  the  Bill.  They  also 
relate  to  his  duties  to  determine  in  certain  circumstances  the  distribution  of 
these  royalties  deposited  with  the  Register  of  Copyrights.  Section  803  provides 
for  selection  of  membership  of  the  tribunal  to  make  necessary  determinations 
with  respect  to  royalty  matters,  to  be  on  the  basis  of  a  list  of  names  furnished: 
by  the  American  Arbitration  Association  to  the  Register  of  Copyrights.  Section 
804  provides  for  procedures  to  be  followed  by  the  tribunal  in  making  its  deter- 
minations. Subsection  (e)  of  Section  804  directs  that  the  tribunal  shall  render  a 
final  decision  in  each  proceeding  within  one  year  from  the  certification  of  the 
panel,  certified  by  the  Register  of  Copyrights  on  the  basis  of  the  names  furnished 
by  the  American  Arbitration  Association.  This  subsection  further  provides  that 
the  Senate  Committee  on  the  Judiciary  and  the  House  of  Representatives  Com- 
mittee on  the  Judiciary,  upon  a  showing  of  good  cause,  may  waive  this  require- 
ment of  the  rendering  of  a  final  decision  within  one  year  from  the  certification 
of  the  panel  in  a  particular  proceeding.  The  judicial  review  for  tribunal  final 
determinations,  provided  in  Section  809  (concerning  the  distribution  of  royalty 
fecy).  is  limited.  A  court  may  vacate,  modify  or  correct  such  a  determination 
if  it  was  procured  by  corruption,  fraud  or  undue  means,  where  a  member  of 
the  j>aTiel  was  partial  or  corruT)t,  and  where  any  member  of  the  panel  was  guilty 
of  misconduct  by  which  the  rights  of  any  party  were  prejudiced. 

Provisions  for  th*^  protection  of  ornamental  designs  of  useful  articles  appear 
in  Title  II  of  the  Bill.  Section  201  provides  that  authors  or  proprietors  of  an 
original  ornamental  design  of  a  useful  article  may  secure  a  period  of  protection, 
except  for  certain  subject  areas  set  out  in  Section  202,  for  a  period  provided  in 
Section  205.  Section  20'!  contains  d^^finitions  of  the  terms  "useful  article".  "desigTi 
of  a  useful  article",   "ornamental",  and   "original"  as  needed  for  purposes  of 


151 

the  particular  protection  provided  by  this  Title.  Section  204  provides  that  protec- 
tion commences  on  the  date  when  the  design  is  first  made  public,  either  by  beinff- 
exhibited,  publicly  distributed,  or  offered  for  sale  or  sold  to  the  public.  Section 
205  provides  that  the  term  of  protection  extends  for  five  years,  subject  to  being- 
renewed  for  an  additional  five  years  prior  to  the  expiration  of  the  initial  term. 
Section  206  provides  for  certain  design  notices  to  be  applied  ro  the  products  pro- 
tected, and  Section  207  limits  recovery  for  infringement  if  the  design  notice 
requirements  of  Section  206  have  been  omitted.  However,  actual  notice  of  design- 
protection  to  a  particular  person  can  take  the  place  of  the  design  notice  require- 
ment of  Section  206. 

Section  209  of  Title  II  provides  for  loss  of  protection  if  registration  of  the 
design  is  not  made  within  six  months  after  the  date  on  which  the  design  was 
first  made  public,  who  may  make  application  for  renewal  registration  of  a 
design  protected  under  the  Bill,  how  and  under  what  conditions  and  with  what 
supporting  papers  a  design  protected  under  the  Bill  can  be  renewed. 

Section  212  of  Title  II  deals  with  the  examination  of  the  design  application 
and  provides  for  cancellation  of  registrations  on  application  of  a  person  who 
believes  he  is  or  will  be  damaged  by  a  registration  under  this  Title.  Grounds 
for  cancellation  are  that  the  design  is  not  subject  to  protection  under  the  provi- 
sions of  the  Title. 

Section  220  of  Title  II  provides  remedies  for  infringement  of  a  design  pro- 
tected under  this  Title.  It  provides  for  a  civil  action  to  have  judicial  review  of 
a  final  refusal  of  the  Administrator  to  register  the  design  as  for  infringement 
if  commenced  within  a  time  period  specified  by  the  Administrator  of  the  Title, 
but  not  less  than  sixty  days  after  the  decision,  and  permits  simultaneous  remedy 
for  infringement  by  the  same  action  if  the  court  adjudges  the  design  su))ject 
to  protection  under  this  Title.  This  would  appear  to  mean  that  the  infringer 
would  have  to  be  joined  as  a  party  defendant  with  the  Administrator  of  this 
Title.  The  requirements  for  such  an  action  are  that  the  design  proprietor  has 
filed  and  prosecuted  to  final  refusal  an  application  for  registration  of  the  design, 
a  copy  of  the  complaint  in  the  action  is  delivered  to  the  Administrator  within 
ten  days  after  commencement  of  the  action,  and  the  defendant  has  committed 
acts  which  would  constitute  infringement  of  the  design. 

Section  221  of  Title  II  gives  courts  jurisdiction  of  actions  under  this  Title 
and  authority  to  grant  injunctions  to  prevent  infringement,  including  temporary 
restraining  orders  and  preliminary  injunctions. 

Section  222  of  Title  II  relates  to  recovery  of  infringement,  setting  maximum 

amounts  of  recovery  per  infringing  copy  by  way  of  compensation  and  provides 

for  the  delivery  for  destruction  or  other  disposition  of  any  infringing  articles. 

Section  223  of  Title  II  provides  for  cancellation  of  a  registration  of  a  design 

by  a  court  and  certification  by  the  court  of  such  order  to  the  Administrator. 

Section  227  of  Title  II  provides  that  copyright  protection  under  Title  I,  when 
utilized  in  an  original  ornamental  design  of  a  useful  article,  may  still  be  a  design- 
work  eligible  for  protection  under  the  provisions  of  this  Title.  , 
The  issuance  of  a  design  patent  for  an  ornamental  design  for  an  article  of  manu- 
facture under  the  patent  laws.  Title  35  U.S.C,  terminates  any  protection  of  the 
design  under  this  Title. 

Section  229  of  Title  II  provides  that  nothing  in  this  Title  annuls  or  limits 
common  law  or  other  rights  or  remedies  available  to  a  person  with  respect  to- 
a  design  which  has  not  been  made  public  as  provided  in  this  Title  or  any  trade- 
mark right  or  right  to  be  protected  against  unfair  competition. 

Section  232  of  Title  II  amends  various  other  stalutes.  Of  particular  importance 
to  the  Department  is  the  revision  proposed  for  Title  28  U.S.C.  §  1498(a)  to  pro- 
vide that  whenever  a  registered  design  or  invention  is  used  or  manufactured  by 
or  for  the  United  States  without  license  of  the  owner  thereof,  the  owner's  i-emedy 
shall  be  by  action  against  the  United  States  in  the  Court  of  Claims  for  recovery 
of  reasonable  and  entire  compensation.  Use  or  manufacture  of  a  registered  de- 
sign or  invention  by  a  contractor,  subcontractor  or  any  person,  firm  or  corpo- 
ration for  the  government  and  with  the  authorization  or  consent  of  the  govern- 
ment is  to  be  construed  as  use  or  manufacture  for  the  United  States.  Use  or 
manufacture  by  or  for  the  United  States  of  any  article  owned,  leased,  used  by- 
or  in  the  possession  of  the  ITnited  States  prior  to,  in  the  case  of  an  invention, 
July  1,  1918,  and  for  registered  designs,  prior  to  July  1,  1978.  is  not  to  be  the 
basis  of  an  award  under  this  Section.  Government  employees  have  the  right  tO' 
sue  the  government  under  this  Section  except  when  in  a  position  to  order,  in- 
fluence or  induce  use  of  the  registered  design  or  invention  by  the  government. 
Further  excluded  as  a  basis  for  claim  under  this  Section  are  claims  by  a  regis^ 


152 

traut  or  patentee  or  assignee  thereof  when  the  design  or  invention  was  related 
to  the  oflScial  functions  of  the  employee,  in  cases  in  which  such  functions  in- 
cluded research  and  development,  or  in  making  of  which  government  time, 
materials  or  facilities  were  used. 

Section  233  provides  that  Title  II  of  the  Bill  shall  take  effect  one  year  after 
enactment  of  this  Act. 

Section  234  precludes  a  retroactive  effect  for  the  provisions  of  the  design 
protection  of  the  Bill. 

Section  106  states  generally  the  basic  rights  of  copyright  owners.  Following 
sections  of  the  same  chapter  set  forth  limitations  and  exceptions  to  those  rights. 
The  public  interest  in  the  promotion  of  education  and  scholarly  pursuits  calls 
for  a  careful  consideration  of  such  circumstances  as  may  impede  the  dissemina- 
tion of  knowledge.  In  this  regard.  Section  107  of  the  Bill,  dealing  with  "fair  use" 
of  copyrighted  information,  leaves  unclear  the  extent  to  which  librarians  can 
reproduce  works  for  use  in  libraries.  It  would  seem  in  the  public  interest  to 
work  an  accommodation  between  the  copyright  and  such  reproduction.  But,  as 
a  doctrine  applied  on  a  case-by-case  basis,  "fair  use"  renders  it  uncertain  whether, 
without  infringement,  librarians  or  library  patrons  can  make  copies  of  library 
materials  for  the  patrons'  use.  Because  of  the  advantages  of  the  economical 
and  speedy  means  of  reproduction  now  available  in  libraries,  it  would  be  socially 
desirable  not  to  discourage  use  thereof  by  uncertainty  over  the  extent  of  the 
"fair  use"  doctrine.  Thus,  Ave  strongly  believe  that  a  definition  in  tlie  Bill  of 
the  doctrine  as  applied  to  such  reproduction  in  libraries  is  definitely  needed. 
Moreover,  defining  the  meaning  of  "fair  use"  in  this  connection  also  could  serve 
to  reduce  uncompensated  infringement.  To  carry  out  our  suggestion  to  give  maxi- 
mum certainty  as  to  "what  is  a  fair  use,"  and  give  more  meaningful  scope  to 
the  exemptions  from  copyright  liability  of  Section  108  discussed  below,  we 
suggest  the  following  changes  :  Section  107,  last  line  (p.  9,  line  9),  change  "work." 
to— 

"work ;  provided  that  nothing  contained  in  this  Section  shall  be  construed 
to  limit  the  use  by  reproduction  in  whole  or  in  part  in  copies  or  phonorecords 
or  by  other  means  specified  in  Section  106  whenever  used  in  nonprofit  edu- 
cational activities." 

Reason :  Clarity  of  scope  of  fair  use  for  educational  activities. 

^Section  108(d),  lines  5-6  (p.  10,  lines  1,  2),  delete  "of  a  small  part". 

Reason :  Libraries  should  be  able  to  reproduce  entire  work  for  scholarship. 

Section  108(e),  lines  4-7  (p.  10,  lines  13-16),  delete  "if  the  library  or  archive 
has  *  *  *  at  a  fair  price," 

Reason :  Too  diflScult  and  cumbersome  to  make  purchase  investigation ;  dis- 
courages use. 

Section  108,  in  subsection  (a),  provides  that  it  shall  not  Infringe  a  copyright 
for  a  library  or  archives  to  reproduce  or  distribute  no  more  than  one  copy  or 
phonorecord  of  a  work  under  conditions  specified  in  subsequent  parts  of  the 
Section.  These  conditions  require,  among  other  things,  that  the  reproduction 
or  distribution  be  made  without  any  purpose  of  commercial  advantage  and  that 
the  collections  of  the  library  or  archives  be  open  to  the  public  or  available  to 
specialized  researchers,  whether  or  not  affiliated  with  the  library  or  archives 
involved  or  with  the  institution  of  which  the  library  or  archives  is  a  part.  Under 
subsection  (b),  the  rights  of  reproduction  and  distribution  free  from  liability 
would  apply  to  a  copy  or  phonorecord  of  an  unpublished  work  duplicated  in  fac- 
simile solely  for  preservation  and  security  or  for  deposit  for  research  use  in  a 
library  or  archives  of  the  type  covered  by  the  Section.  Under  subsection  (c), 
the  exemption  from  infringement  would  apply  to  a  duplication  in  facsimile  of  a 
published  work  solely  for  replacement  of  a  copy  or  phonorecord  that  is  damaged, 
deteriorating,  lost  or  stolen,  if  after  reasonable  effort  it  has  been  determined 
that  an  unused  replacement  cannot  be  obtained  at  a  fair  price. 

The  rights  of  reproduction  and  distribution  under  Section  108  extend  to  the 
isolated  and  unrelated  reproduction  or  distribution  of  a  single  copy  or  phono- 
record of  either  a  publislied  or  unpublished  work  on  separate  occasions  unless 
the  lil)rary  or  archives  is  aware  or  has  substantial  reason  to  believe  that  it  is 
engajring  in  a  related  or  concerted  reproduction  or  distribution  or  engages  in  a 
systematic  reproduction  or  distribution  of  a  copy  of  an  item  forming  part  of  a 
copyriglited  collection  or  periodical  issue  or  of  a  copy  or  phonorecord  of  a  small 
part  of  any  other  copyrighted  work. 

As  we  read  this  provision,  it  will  not  prevent  libraries  and  archives  from 
reproducing  works  in  machine-readable  language  in  connection  with  the  storage 


153 

and  me  of  computerized  information  systems.  We  hope  that  the  House  legislative 
history  of  the  Bill  will  clearly  support  this  construction,  for  the  storage  and  use 
of  data  in  such  systems  is  of  great  importance  to  repositories  and  sources  of 
scholarly  research  material.  To  impose  copyright  liability  impeding  the  stor- 
age of  such  data  would  be  socially  undesirable.  If  our  interpretation  of  Section 
108  is  wrong,  we  recommend  that  the  Section  be  changed  to  extend  the  appli- 
cable exemption  to  reproduction  in  machine-readable  language  for  storage  and 
use  in  information  systems. 

The  ease  of  transfer  of  computerized  data  is  another  area  in  which  H.R.  2223 
raises  a  problem.  Universities,  research  agencies,  government,  and  private  indus- 
try are  developing  information  networks  using  computers  and  other  electronic 
efpiipment  to  speed  the  transfer  of  information  from  source  to  user.  H.R.  2223 
does  not  provide  a  method  by  means  of  which  information  systems  users  can 
ea^iiy  obtain  the  permission  of  copyright  owners  for  use  of  their  material.  The 
difficulty  and  loss  of  time  entailed  in  many  cases  in  contacting  owners  may 
inhibit  users  from  including  material  in  their  systems.  Or  users  may  be  unable 
to  employ  material  in  their  systems  in  sufficient  time  in  situations  where  speed 
is  essential.  It  would  appear  in  the  puJilic  interest  for  the  Bill  to  contain  some 
guarantee  that  information  systems  which  are  willing  to  pay  royalties  for  mate- 
rial used  can  obtain  easier  access  to  copyrighted  information,  at  least  in  high- 
prifrity  areas  such  as  scientific  and  technological  works. 

The  proposed  legislation  also  leaves  unclear  at  what  point  in  the  use  of  com- 
puterized copyrighted  material  the  liability  for  royalty  payment  attaches.  Under 
H.R.  2223,  it  would  seem  that  placing  copyrighted  data  into  a  computer  (which 
may  form  part  of  an  information  system)  might  infringe  the  copyright.  Since 
the  use  of  computers  for  storage  and  retrieval  of  information  to  some  extent  may 
replace  the  sale  of  books,  in  most  cases  the  payment  of  royalties  should  be 
required.  However,  just  where  in  the  process  the  royalty  payment  should  be 
assessed,  is  open  to  question.  We  believe  it  unwise  to  levy  a  "toll"  at  the  "input" 
stage  in  the  process.  Levying  on  the  "input"  into  computers  could  impede  the 
development  of  information  systems  and  may  render  meaningless  any  exemption 
for  tlie  use  of  computerized  information  for  educational  purposes  which  may  be 
read  into  H.R.  2223. 

The  subject  of  the  application  of  copyright  to  community  antenna  television 
has  presented  considerable  difficulty  in  previous  drafts  of  proposed  revisions  of 
the  Copyright  Code.  H.R.  2223  attempts  a  compromise  between  the  extreme 
positions  of  complete  liability  for  infringement  of  copyright  by  secondary  trans- 
mission by  CATV  on  one  hand  and  almost  complete  freedom  from  liability  on 
tlip  other  hand.  While  we  support  the  imposition  of  a  degree  of  liability  upon 
CATV,  we  believe  that  H.R.  2223  should  provide  an  area  of  free  use  for  such 
systems  within  the  local  service  area. 

The  first  part  of  subsection  (c)  of  Section  111  provides  for  compulsory  licen- 
sing of  secondary  transmissions  of  a  primary  transmission  by  an  FCC  licensed 
broadcast  station  upon  comj)]iance  with  the  notice  of  ownership  and  the  pay- 
ment provisions  of  siibsection  (d),  and  (A)  the  signals  of  the  primary  trans- 
mission are  exclusively  aural  and  the  secondary  ti*ansmission  is  permissible 
under  the  rules,  regulations  or  authorizations  of  the  FCC;  (B)  where  the  CATV 
.c;ystem  is,  in  whole  or  in  part,  within  the  local  service  area  of  the  primary  trans- 
mitter; or  (C)  where  carriage  of  the  signals  comprising  the  secondary  trans- 
mission is  permissible  under  the  FCC  rules,  regulations  or  authorizations.  We 
strongly  urge,  with  respect  to  (B),  that  the  secondary  transmittal  should  be 
completely  free  of  liability  ;  hence,  royalty-free  or  no  licensing  would  be  in  order. 
The  secondary  transmission  in  such  a  situation,  where  the  CATV  system  is,  in 
whole  or  in  part,  within  the  local  service  area  of  the  primary  transmitter,  finds 
the  cable  system  only  filling  gaps  or  improving  reception  in  the  service  area  of 
the  primary  transmitter,  supplementing  the  primary  transmission.  Such  trans- 
mission does  not  impair  the  primary  transmitter's  market :  in  fact,  it  enhanceg 
it.  The  copyright  holder  is  helped  and  not  hurt  by  such  activity. 

Section  203  and  Section  304Cc)  (fi)  (D)  concern  the  termination  of  trans- 
fers and  licenses.  These  Sections  would  permit  the  author  or  his  heirs  to  terminate 
the  original  transfer  of  his  rights  at  any  time  during  a  period  of  five  years 
beginning  at  the  end  of  a  specified  time.  However,  Section  203(b)(4)  and 
parallel  Section  304(c)  (6)  (D)  (relating  to  transfers  of  copyrights  subsisting 
after  .January  1.  1977)  provide  that  an  agreement  to  transfer  rights  subsequen: 
to  the  termination  of  a  prior  transfer  will  not  be  valid  unless  made  after  the 
effective  date  of  that  termination  or  unless  made  to  the  original  grantee  or  his 

57-786— 7  G—pt.  1 11 


154 

successor  in  title.  We  do  not  believe  that  the  grantee  or  his  successor  should 
be  in  a  preferred  position  to  enter  into  an  agreement  for  transfer  prior  to  termina- 
tion of  the  original  transfer.  We  see  no  reason  why  all  potential  transferees 
should  not  have  an  equal  opportunity  to  enter  into  such  an  agreement.  It  is 
therefore  suggested  that  subparagraph  (4)  of  Section  203 (b)  and  subparagraph 
(D)  of  Section  304(c)  (6)  be  deleted. 

Section  302  substantially  lengthens  the  time  of  copyright  protection  when 
compared  with  the  duration  of  copyright  in  works  under  the  present  copyright 
law.  At  the  presnt  time,  protection  is  granted  for  28  years  from  the  date  of 
publication  and  may  be  renewed  for  a  second  28  years,  making  a  total  potential 
term  of  56  years  in  all  cases.  United  States  patents  for  any  new  and  useful 
process,  machine,  manufacture  or  composition  of  matter  or  improvement  thereof, 
are  granted  for  a  term  of  17  years.  35  U.S.C.  154.  Patents  for  new,  original,  and 
ornamental  designs  of  articles  of  manufacture  are  granted  for  a  period  up  to 
14  years.  35  U.S.C.  173. 

Patents  for  plants  are  granted  for  the  same  length  of  term  as  for  new  and 
useful  processes,  machines,  manufacture  or  compositions  of  matter.  35  U.S.C. 
161.  Under  the  proposed  Bill,  an  author  would  receive  a  copyright  for  his  life 
and  50  years  after  his  death.  Considering  the  average  life  expectancy  of  people 
today,  this  will  double  the  length  of  copyright  when  compared  with  the  present 
one  for  many  works.  For  anonymous  works,  pseudonymous  works,  and  works 
made  for  hire,  the  term  is  somewhat  less  but  still  significantly  greater  than 
provided  by  the  present  statute. 

Senate  Report  No.  93-983,  pages  167-173,  discusses  various  considerations 
for  the  duration  of  copyriglit  in  works.  A  major  argument  for  increa.sing  the 
term  of  copyright  appears  to  be  that  the  extension  conforms  with  foreign  laws 
which  provide  for  longer  terms  of  copyright  than  the  present  United  States 
law.  This  argument  is  presented  in  the  Senate  study.  However,  we  do  not 
believe  that  this  should  be  the  criterion  for  the  proper  length  of  copyriglit 
protection  in  the  United  States. 

Under  the  Constitution.  Article  1,  Section  8,  the  purpose  of  a  copyright  is 
to  promote  the  progress  of  science  and  useful  arts  by  securing  for  limited  times 
to  authors  and  inventors  the  exclusive  right  to  their  respective  writings  and  dis- 
coveries. While  it  may  be  urged  that  a  copyright  term  of  28  years  plus  an  addi- 
tional 28  years  might  be  insufficient  to  protect  the  interests  of  an  author  in  his 
writings  in  view  of  the  lengthening  of  the  ordinary  life  span  in  modern  times, 
the  proposed  Bill,  by  its  extended  duration  of  the  copyright  term,  appears  to 
carry  the  protection  far  beyond  the  contemplation  of  the  framers  of  the  Con- 
stitution. As  an  alternative,  we  propose  to  provide  for  the  lengthening  of  the 
term  of  the  copyright  duration  to  be  at  least  coextensive  with  the  lifetime  of 
the  author.  In  this  way,  the  author  will  be  insured  protection  of  liis  work  for 
at  least  as  long  as  he  may  live.  Thus,  we  propose  the  substitution  of  an  alter- 
native provision  to  Section  302(a)  as  follows  : 

(i\)  In  General.— Copyright  in  a  work  created  on  or  after  January  1.  1977, 
subsists  from  its  creation  and,  except  as  provided  by  the  following  subsec- 
tions, endures  for  a  term  consisting  of  56  years  or  the  life  of  the  author, 
whichever  is  greater. 
A  conforming  amendment  should  also  be  made  in   Section  302(b).  The  provi- 
sions of  Section  302(c)  should  be  modified  to  limit  the  duration  of  anonymous 
works,  pseudonymous  works,  and  works  made  for  hire,  to  a  period  of  56  years 
from  the  year  of  their  ci-eation  or  first  publication. 

Our  proposal  would  carry  out  the  constitutional  concept  of  promoting  the 
progress  of  science  and  useful  arts.  A  ufV^enr  roDviiglit  term,  as  may  be 
extended  by  the  lifetime  of  the  author,  is  believed  more  than  adequate  to  pro- 
mote this  constitutional  purpose. 

It  has  also  been  urged  that  growth  in  communications  media  has  lengthened 
the  commercial  life  of  manv  works.  This  does  not  .ins<^ify  lengthening  the  term 
of  a  copyright  beyond  .56  years  or  the  lifetime  of  the  author  because  a  lengthened 
commercial  life  is  not  necessarily  consistent  with  the  basic  constitutional 
purnose. 

The  basic  question  with  respect  to  copyright  duration  to  be  answered  by  the 
Congress  is  whether  a  doubling  of  the  present  copyright  term  for  manv  works 
is  desirable  to  promote  the  progress  of  science  and  useful  arts.  Other  forms 
of  federal  protection  for  creative  works,  such  as  pa*-ents  for  useful  devices, 
plants,  and  designs,  are  all  for  periods  of  no  more  than  17  years.  Copvrights 
in  writings  are  already  in  a  preferred  position.  We  do  not"  believe  that  the 


155 

promotion  of  the  progress  of  science  and  useful  arts  requires  a  doubling  of  the 
possible  56-jear  copyright  period.  Our  alternative  proposal  would  accommodate 
such  valid  concerns  as  may  exist  regarding  the  present  law  and,  at  the  same 
time,  carry  out  constitutional  goals. 

Section  405  deals  with  the  effect  of  omission  of  the  copyright  notice.  Under  the 
present  Act,  omission  of  notice  on  published  copies  of  a  work  ordinarily  places  the 
work  in  the  public  domain  (17  IJ.S.C.  §21).  However,  if  such  notice  is  acci- 
dentally omitted  from  a  particular  copy  or  copies,  copyright  is  not  lost;  but  in- 
nocent infringers  who  are  misled  by  the  accidental  omission  are  not  liable  for 
infringement.  Under  Section  405  of  the  Bill,  omission  of  notice  from  "a  relatively 
small  number"  of  copies  or  phonorecords  publicly  distributed  will  not  invalidate 
the  copyright  whether  or  not  such  omission  was  accidental.  Moreover,  the  omis- 
sion of  notice  will  not  invalidate  the  copyright  in  a  work  if  registration  for  the 
work  is  made  within  five  years  after  the  publication  without  notice  and  a  rea- 
sonable effort  is  made  to  add  notice  to  all  copies  or  phonorecords  distributed  to 
the  public  in  the  United  States  after  the  omission  is  discovered.  As  under  the 
present  law,  innocent  infringers  who  are  misled  by  the  omission  of  notice  would 
not  be  liable  in  actual  or  statutory  damages  for  infringement.  But  under  H.R. 
2223,  they  might  have  to  surrender  profits  gained  through  the  infringement  and 
be  subject  to  injunction  or  payment  of  a  reasonable  license  fee  for  continuing 
their  activity  (Section  405(b)).  These  provisions  would  delete  from  17  U.S.C. 
§  21  the  provision  that  no  permanent  injunction  shall  be  had  unless  the  proprietor 
of  the  copyright  shall  reimburse  the  innocent  infringer  his  reasonable  outlay  in- 
nocently incurred  if  the  court,  in  its  discretion,  shall  so  direct. 

A  copyright  should  be  protected  from  invalidation  only  when  the  failure  to  pro- 
vide notice  was  the  result  of  an  accident  or  mistake  or  in  violation  of  the  copy- 
right owner's  written  requirement  that,  as  a  condition  of  authorization  of  public 
distribution,  the  copies  or  phonorecords  bear  the  prescribed  notice,  and  distribu- 
tion of  only  a  small  number  of  such  items  has  been  made  to  the  public.  To  permit, 
as  proposed  in  Section  405,  a  copyright  owner  to  issue  an  entire  publication  of  his 
worli:  without  notice  and  yet  enforce  the  copyright  tends  to  negate  the  purpose 
of  notice.  Although  innocent  infringers  would  incur  no  liability,  they  would  still 
have  to  establish  their  innocence  even  where  the  omission  was  deliberate  in  many 
cases.  We  suggest  that  the  Section  specifically  be  limited  to  the  effect  of  omission 
of  the  copyright  notice  by  accident  or  mistake.  We  also  believe  it  advisable  that 
the  words  "particular  copy  or  copies",  contained  in  the  present  statute,  be  used 
instead  of  the  broader  and  more  general  words  "a  relatively  small  number," 
found  in  Section  405,  to  designate  the  limits  within  which  notice  may  be  omitted 
without  loss  of  copyright.  And  we  think  the  discretion  in  the  court  to  order  reim- 
bursement to  the  innocent  infringer  should  be  retained. 

Subject  to  specified  exceptions,  Section  601  provides  that  the  importation  into 
or  public  distribution  in  the  United  States  of  more  than  2,000  copies  of  a  work 
consisting  preponderantly  of  nondramatic  literary  material  in  English  by  an 
American  or  resident  alien  author  and  protected  under  the  Copyright  Code  is  pro- 
hibited, unless  the  portions  consisting  of  such  material  have  been  manufactured 
in  the  United  States  or  Canada.  This  Section  would  reenact  in  modified  form  a 
previous,  highly  protectionist  nontariff  trade  barrier  (17  U.S.C.  16,  107).  We  do 
not  believe  that  there  is  either  a  necessity  or  desirability  for  such  a  provision 
which  creates  an  absolute  bar  to  certain  books  published  abroad. 

Section  601  is  entirely  unrelated  to  questions  of  copyright.  It  does  not  protect 
authors  at  all.  On  the  contrary,  Section  601  decreases  the  value  of  copyrights  by 
preventing  an  American  author  from  granting  worldwide  publication  rights  to 
an  English  publisher  who  offers  more  favorable  compensation  than  an  American 
publisher.  Whatever  the  merits  of  the  original  "infant  industry"  justification  for 
the  manufacturing  clause,  the  restriction  is  clearly  unnecessary  and  inappro- 
priate today  in  light  of  the  strength  and  success  of  our  industry  "and  in  light  of 
our  nation's  commitment  to  eliminate  nontariff  barriers  to  international  trade 
and  ensure  vigorous  competition. 

For  these  reasons.  Section  601  should  be  stricken  from  the  Bill,  and  the  "manu- 
faotiiring  clause"  should  be  eliminated  from  our  copyright  law. 

With  respect  to  the  Department's  anti-piracy  program  in  the  sound  recording 
field,  we  note  the  following  as  areas  where  amendments  are  desirable : 

Section  506  should  be  amended  to  provide  for  forfeiture  of  infringing  articles 
in  criminal  cases  resulting  in  convictions,  and  a  new  section  should  be  added  to 
provide  for  summary  and  judicial  forfeitures  in  criminal  cases. 


156 

At  present,  the  government  has  no  clear-cut  authority  to  destroy  infringing  ar- 
ticles which  have  been  seized  or  otherwise  obtained  in  the  investigation  or  pros- 
ecution of  a  tape  piracy  case  or,  for  that  matter,  any  criminal  copyright  infringe- 
ment case.  This  laclv  of  specific  authority  has  resulted  in  critical  storage  problems 
for  many  F.B.I,  and  U.S.  Marshals'  offices  throughout  the  country  and  poses  the 
embarrassing  possibility  that  the  government  may  be  ordered  to  return  known 
infringing  articles  to  a  convicted  defendant. 

With  proper  amendments,  H.R.  2223  could  eliminate  this  most  serious  problem. 
We  strongly  urge  the  following  revisions  : 

1.  There  should  be  added  to  Section  506  a  new  subsection  which  should  be 
designated  as : 

(b)  When  any  person  is  convicted  of  any  violation  of  subsection  (a),  the 
court  in  its  judgment  of  conviction  shall,  in  addition  to  the  penalty  therein 
prescribed,  order  the  forfeiture  and  destruction  or  other  disposition  of  all  in- 
fringing copies  or  phonorecords  and  all  implements,  devices,  equipment  or 
other  articles  of  whatever  kind  used  or  intended  to  be  used  in  the  manufac- 
ture, use,  or  sale  of  such  infringing  copies  or  phonorecords. 
Present  subsections  (b),  (c),  and  (d)  need  to  be  redesignated  as  subsections  (c), 
(d),  and  (e),  respectively. 

A  conforming  amendment  should  be  made  to  Title  18,  United  States  Code,  Sec- 
tion 2318,  so  that  it  reads  as  follows : 
Section  2318 : 

{a)    ( present  Section  2318 ) . 

(b)  When  any  person  is  convicted  of  any  violation  of  subsection  (a), 
the  court  in  its  judgment  of  conviction  shall,  in  addition  to  the  penalty 
therein  prescribed,  order  the  forfeitui-e  and  destruction  or  other  disposition 
of  all  counterfeit  labels  and  all  articles  to  wliich  counterfeit  labels  have  been 
affixed  or  wliicii  were  intended  to  have  had  such  labels  affixed. 

(c)  Except  to  the  extent  they  are  inconsistent  with  the  provisions  of 
tliis  title,  all  provisions  of  section  [new  forfeiture  section  described  below] 
Title  17,  United  States  Code,  are  applicable  to  violations  of  subsection  (a). 

2.  A  new  section  should  be  added  reading  as  follows : 

(a)  All  copies  or  phonorecords  manufactured,  reproduced,  distributed, 
sold,  or  otherwise  used,  intended  for  use,  or  possessed  with  intent  to  use  in 
violation  of  section  506(a),  and  all  plates,  molds,  matrices,  masters,  tapes, 
film  negatives,  or  other  articles  by  means  of  which  such  copies  or  phono- 
records may  be  reproduced,  and  all  electronic,  mechanical,  or  other  devices 
for  manufacturing,  reproducing,  assembling,  using,  transporting,  distribut- 
ing, or  selling  such  copies  or  phonorecords  may  be  seized  and  forfeited  to  the 
United  States. 

(b)  All  provisions  of  law  relating  to  (1)  the  seizure,  summary  and  judi- 
cial forfeiture,  and  condemnation  of  vessels,  vehicles,  merchandise,  and  bag- 
gage for  violations  of  the  customs  laws  contained  in  Title  19,  United  States 
Code,  (2)  the  disposition  of  such  vessels,  vehicles,  merchandise,  and  bag- 
gage or  the  proceeds  from  the  sale  thereof,  (3)  the  remission  or  mitigation 
of  such  forfeiture,  (4)  the  compromise  of  claims,  and  (5)  the  award  of 
compensation  to  informers  in  respect  of  such  forfeitures,  shall  apply  to 
seizures  and  forfeitures  incurred,  or  alleged  to  have  been  incurred,  under 
the  provisions  of  this  section,  insofar  as  applicable  and  not  inconsistent  with 
the  provisions  of  this  section ;  except  that  such  duties  as  are  imposed  upon 
the  collector  of  customs  or  any  other  person  with  respect  to  the  seizure  and 
forfeiture  of  vessels,  vehicles,  merchandise,  and  baggage  under  the  provi- 
sions of  the  customs  laws  contained  in  Title  19  of  the  United  States  Code 
shall  he  performed  with  respect  to  seizure  and  forfeiture  of  all  articles 
described  in  subsection  (a)  by  such  officers,  agents,  or  other  persons  as  may 
he  authorized  or  designated  for  that  purpose  by  the  Attorney  General. 

Proposed  Section  114  should  be  amended  to  provide  for  the  copyright  owner 
of  a  sound  recording  to  have  the  right  to  make  derivative  works  or  it  should  be 
amended  to  clarify  that  persons  other  than  the  copyright  owner  do  not  have  such 
a  right  absent  consent  of  the  copyright  owner,  notwithstanding  the  fact  that 
the  sound  recording  copyright  owner  would  have  no  such  right. 

Section  114  limits  the  specific  rights  of  a  sound  recording  copyright  owner  to 
those  granted  to  copyright  owners  by  parts  (1)  and  (3)  of  Section  106.  That  is, 
sound  recording  copyright  owners  have  the  right : 

(1)   to  reproduce  the  copyrighted  work  in  copies  or  phonorecords;  and 

******* 


157 

(3)  to  distribute  copies,  etc. 
The  right  to  prepare  derivative  works  based  on  the  copyrighted  work  (part  2 
of  Section  106)  is  withheld  from  a  sound  recording  copyright  owner  despite  Sec- 
tion 103  which  states  that  such  works  are  copyrightable  and  despite  the  fact 
that  sound  recording  copyright  owners  are  entitled  to  make  and  copyright 
derivative  works  under  present  law,  17  U.S.C.  §  7.  There  is  a  real  possibility  that 
an  unauthorized  duplicator  who  made  a  "derivative"  work  by  slightly  altering 
the  original  copyrighted  sound  recording  would  claim  that  he  did  so  legally  since 
the  copyright  owner  is  given  no  exclusive  right  to  make  derivative  works. 

This  "potential  legal  problem  could  be  eliminated  by  including  part  (2)  of  Sec- 
tion 106  in  the  list  in  Section  114  of  exclusive  rights  granted  to  a  sound  recording 
copyright  owner — an  action  which  would  grant  to  sound  recording  copyright 
owners  no  more  rights  than  they  presently  possess.  Section  506  should  be 
amended  accordingly  to  include  part  (2)  of  Section  106. 

A  third  area  for  concern  is  proposed  Section  301  (pages  32-33),  subparagraph 
(b),  which  states : 

Nothing  in  this  title  annuls  or  limits  any  rights  or  remedies  under  the 
common  law  or  statutes  of  any  state  with  respect  to : 
******* 

(3)  activities  violating  rights  that  are  not  equivalent  to  any  of  the 
exclusive  i-ights  within  the  general  scope  of  copyright .  .  .  including  breaches 
of  contract,  breaches  of  trust,  invasion  of  privacy,  defamation,  and  decep- 
tive trade  practices. . . . 

We  believe  this  language  could  be  read  as  abrogating  the  anti-piracy  laws 
now  existing  in  29  states  relating  to  pre-February  15,  1972,  sound  recordings  on 
the  grounds  that  these  statutes  proscribe  activities  violating  rights  "equivalent 
to  .  .  .  the  exclusive  rights  within  the  general  scope  of  copyright.  ,  .  ."  Certainly 
such  a  result  cannot  have  been  intended  for  it  would  likely  effect  the  immediate 
resurgence  of  piracy  of  pre-February  15,  1972  sound  recordings.  (Note:  in  any 
event,  there  would  be  no  effect  on  sound  recordings  produced  after  February  15, 
1972.  since  it  would  appear  that  the  .states  cannot  constitutionally  enforce  their 
anti-piracy  laws  against  the  unauthorized  duplication  of  these  later  recordings.) 
We  therefore  urge  that  Section  301(b)  be  amended  to  include  a  new  subsection 
(4)   as  follows: 

(4)  Sound  recordings  fixed  prior  to  February  15,  1972. 

Proposed  Section  .506(a)  should  be  amended  to  correct  the  disparity  of  sanc- 
tions between  second-time  infringers  of  sound  recording  and  motion  picture  copy- 
rights and  .second-time  infringers  of  other  copyrights.  As  written.  Section  506(a) 
I>rovides  for  a  maximum  $10,000  fine  and  three  years  imprisonment  for  second- 
time  infringers  of  all  copyrights  but  sound  recording  and  motion  picture  copy- 
rights. Infringers  of  these  latter  two  categories  are  subject,  upon  conviction  of  a 
second  offense,  to  a  maximum  fine  of  $50,000  and  two  years  impi-isonment.  We 
suggest  that  these  latter  infringements  are  sufficiently  serious  to  warrant  at 
least  the  same  maximum  imprisonment  for  second  offenders  as  is  applicable  to 
second-time  infringers  of  other  copyright's,  as  well  as  the  larger  fine.  The  term 
of  imprisonment  prescribed  should  therefore  he  at  least  three  years. 

We  support  the  substitution  of  "for  purposes  of  commercial  advantage  or 
private  financial  gain"  for  the  present  requirement  in  17  U.S.C.  §  104  that,  to  be 
criminal,  infringements  must  be  done  "for  profit".  The  provision  in  present  Sec- 
tion 104  for  aiders  and  abettors  has  been  removed,  but  these  individuals  will 
be  liable  to  prosecution  under  18  U.S.C.  §  2. 

From  the  standpoint  of  making  deterrents  meaningful  beyond  the  financial  de- 
terrent and  provide  a  penalty  for  those  who  can  "take"  financial  losses  as  a  cost 
of  business,  it  is  recommended  that  a  maximum  one-year  term  of  imprisonment  l>e 
included  in  the  sanctions  under  proposed  Sections  116(d)  and  506  (b),  (c),  and 
(d).  all  of  which  are  provisions  the  Department  suoports. 

We  also  note  that  Section  115.  subparagraph  (a)  (1).  states  explicitly  and  with 
clarity  what  four  courts  of  appeals  ^  have  ruled  is  the  scope  of  compulsory  licens- 
ing under  present  law.  namelv.  that  absent  authorization  by  the  owner  of  a 
composition  copyright,  the  duplication  of  a  sound  recording  embodying  a  copy- 


T^.TotuJora  Mufn'c  PuMixhivQ  Co.  T.  Melodi/  Recorrlin (;■<>,  Inc.,  506  F.  2d  .39.^  (T.A.  ?,. 
r»o(>ember  27.  1974)  ;  Fame  PuMishina  Co.,  Tnc.  v,  Alahnmn  Cnstom  Tape.  Inc..  507  F.  2(1 
667  (C.A.  5.  .Tanuarv  31.  1975)  :  Duchei<.<?  Music  Corp.  v.  Stern  4.5S  F.  2d  1305  fC.A.  9>, 
certiorari  denied,  sub  nom.  Rosner  v.  Duchess  Mii-fic  Corp.,  409  U.S.  S47  ;  and  Edward  B. 
Mnrlcs  Ulnsic  Corp.  v.  Colorado  Magnetics,  Inc..  497  F.  2d  2S9  (C.A.  10).  certiorari  denied, 
stth  nom.   Colorado  Magnetics,  Inc.  v.   Edward  Marks  Music  Corp.,  419   F.S.   1120. 


158 

righted  musical  composition  is  an  infringement  of  tlie  composition  copyright  oven 
though  the  duplicator  tenders  royalty  payments  and  otherwise  attempts  to  com- 
ply with  present  compulsory  licensing  provisions.  This  is  contained  in  the  linal 
sentence  of  suhpargraph  ( a )  ( 1 ) ,  which  reads  : 

A  person  may  not  obtain  a  compulsory  license  for  use  of  the  [nondramatie 
musical]  work  in  the  duplication  of  a  sound  recording  made  by  another. 
Since  this  prohibition  is  not  limited  to  copyrighted  sound  recordings,  the  effect  is 
to  prevent  the  operation  of  the  cominilsory  license  mechanism  for  making  copies 
of  any  sound  recordings  embodying  copyrighted  musical  compositions.  The  De- 
partment wholeheartedly  supports  this  pro\ision. 

Section  804  deals  with  procedures  before  the  tribunal  which  determines 
adjustment  of  copyright  royalties  and  their  distribution  under  specified  sections 
of  the  Bill.  We  object  to  the  provision  in  subsection  (e)  of  this  ^Section  that 
the  Senate  Committee  on  the  Judiciary  and  the  House  of  Representatives 
^Committee  on  the  Judiciary  may  waive  a  requirement  that  a  final  decision  in 
■each  proceeding  be  rendered  by  the  tribunal  witiiin  one  year  from  tlie  certification 
of  the  panel  by  the  Register  of  Copyrights.  The  constitutional  division  of  duties 
among  the  three  principal  branches  of  the  government  places  in  the  Congress  the 
legislative  responsibilities.  However,  once  a  law  lias  been  enacted,  it  is  for  the 
Executive  Branch  to  carry  out  the  intents  and  purposes  of  the  law  as  directed 
by  the  Congress.  In  our  view,  legislation,  once  enacted,  should  not  be  modified 
or  waived  by  actions  of  a  committee  of  the  Congress.  It  is  suggested  that  if 
waiver  of  the  one-year  requii-ement  is  desirable  under  particular  circumstances, 
tliese  circumstances  be  generally  outlined  in  tlie  Bill  and  that  the  tribunal  be 
given  authority  upon  good  cause  shown  to  extend  the  period  of  time  for 
rendering  decisions. 

Of  particular  concern  to  this  Department  is  the  new  form  of  copyright  protec- 
tion provided  by  Title  II  of  the  Bill.  This  new  form  of  protection  is  a  hybrid 
between  design  patents  (35  U.S.C.  §  171-173)  issued  for  a  period  of  up  to  14 
years  by  the  Patent  OfHce  for  new,  original  and  ornamental  designs  of  articles 
of  manufacture  and  the  copyriglit  laws  which  provide  for  registration  and  issu- 
ance of  certificates  of  copyrights  for  the  writings  of  authors.  The  new  protection 
that  is  provided  under  the  Bill  is  not  presently  available  under  the  copyright 
laws  and  can  only  be  obtained  through  a  design  patent  after  an  examinati(jn 
procedure  which  dtr^termiues  whether  the  ornamental  design  meets  the  criteria 
of  patentability,  including  unobviousness  in  view  of  the  prior  art,  as  provided 
by  35  U.S.C.  102,  103.  While  the  protection  period  as  proposed  for  the  new  type 
of  ornamental  design  protection  is  only  a  maximum  of  ten  years  as  compared 
with  the  maximum  of  14  years  available  for  a  design  patent,  it  is  granted  without 
the  need  of  meeting  the  novelty  and  unobviousness  requirements  of  the  patent 
statute. 

A  threshold  consideration  before  finding  that  the  needs  are  such  that  this  new 
type  of  protection  should  be  available  is  whether  the  benefits  to  the  public  of 
such  protection  outweigh  the  burdens.  We  believe  that  insufficient  need  has 
been  shown  to  date  to  justify  removing  from  the  public  domain  and  possible 
use  by  others  of  the  rights  and  benefits  proposed  under  the  present  Bill  for  such 
ornamental  designs.  We  believe  that  design  patents,  as  are  granted  today,  are 
as  far  as  the  public  should  go  to  grant  exclusive  rights  for  ornamental  designs 
of  useful  articles  in  the  absence  of  an  adequate  showing  that  the  new  protection 
will  provide  substantial  benefits  to  the  general  public  whicJi  outweigh  removing 
such  designs  from  free  public  use.  While  it  has  been  said  that  the  examination 
procedure  in  the  Patent  Office  results  in  serious  delays  in  the  issuance  of  a  design 
patent  so  as  to  be  a  significant  problem  and  damaging  to  "inventors"  of  orna- 
mental designs  of  useful  articles,  the  desirable  free  use  of  designs  which  do  not 
rise  to  patentable  invention  of  ornamental  designs  of  useful  artir-Ies  are  believed 
to  be  paramount.  If  the  contribution  made  to  the  public  by  the  creation  of  an 
ornamental  design  of  a  useful  article  is  insufficient  to  rise  to  patentable  novelty, 
the  design  should  not  be  protected  by  law.  The  Department  of  Justice  has  con- 
sistently opposed  legislation  of  this  character. 

To  omit  federal  statutory  protection  for  the  form  of  a  useful  object  is  not  to 
deny  the  originator  of  that  form  any  remedy  whatsoever.  If  he  can  prove  that 
competitors  are  passing  off  their  goods  as  the  originator's  by  copying  the  prod- 
uct's design,  he  may  bring  an  unfair  competition  action  against  such  copyists. 
Crescent  Tool  Co.  v.  Eilborn  d  Bishop  Co.,  247  Fed.  299  (C.A.  2  1917).  See,  also, 
Sears,  RoeMck  &  Co.  v.  Stiffel  Co.,  376  U.S.  225  (1964),  and  Compco  Corp.  v. 
Day-Brite  Ughting,  Inc.,  376  U.S.  234  (1964). 


159 

Quite  apart  from  our  opposition  to  the  merits  of  Title  II,  we  also  oppose 
enactment  of  the  design  protection  provisions  of  this  Bill  which  would  provide 
a  new  class  of  actions  against  the  United  States  since  the  Bill  proposes  to  amend 
Section  1498(a)  to  add  the  new  type  of  design  copyrights  to  the  remedies  avail- 
able to  inventors  against  the  United  States  who  have  been  issued  United  States 
patents  when  they  are  used  by  the  United  States  without  authorization  of  tlie 
owner.  For  example,  by  amending  Section  1498  ( a )  in  this  way,  the  Congress  will 
he  creating  a  completely  new  problem  area  fraught  with  difficulties  for  govern- 
ment procurement.  Government  contractors  who  "reverse  engineer"  alleged 
trade  secrets  in  bidding  competitively  for  government  contracts  would  now  be 
faced  with  the  necessity  of  designing  around  the  "packaging  looks"  of  a  product 
covered  by  a  design  copyright  which  may  not  rise  to  the  stature  of  patentable 
novelty  under  the  patent  iaws.  Thus,  the  "non-utilitarian  looks"  of  a  vehicle 
which'may  not  be  protecta5)le  as  a  design  patent  would  be  given  copyright-type 
protection  under  the  Bill.  We,  therefore,  strongly  oppose  the  new  type  of  protec- 
tion proposed  by  Title  II  of  the  Bill. 

Section  1498(a)  is  also  amended  to  provide  for  the  first  time  for  suits  against 
the  United  States  for  unauthorized  use  of  inventions,  whether  patented  or 
unpatented.  Thus,  it  would  appear  to  permit  a  suit  based  on  a  trade  secret  con- 
taining an  unpatented  invention.  This,  also,  we  strongly  oppose  as  inconsistent 
with  limiting  claims  against  the  United  States  in  28  U.S.C.  1498  to  those  recog- 
nized by  the  patent  and  copyright  laws.  No  adequate  showing  has  been  made 
that  this  type  of  protection,  on  balance,  is  in  the  public  interest. 

The  provision  in  Section  220  whereby  simultaneous  suit  can  be  filed  against 
the  Administrator  who  carries  out  the  provisions  of  Title  II  (§230)  and  an 
alleged  infringer  of  the  design  in  that  it  subjects  an  alleged  infringer  to  suit  in 
the  same  action  even  though  the  threshold  question  whether  a  certificate  can 
issue  under  the  provisions  of  the  law  has  not  been  decided  as  between  the  Admin- 
istrator and  the  applicant  for  registration  is  believed  undesirable.  While  it  is 
not  likely  that  the  issuance  of  certificates  of  registration  will  be  frequently 
refused  if  certain  basic  requisites  of  applications  are  met,  nevertheless,  if  a 
situation  should  arise  of  a  refusal  of  issuance  of  a  certificate  of  registration  by 
an  Administrator;  this  should  require  a  separate  and  distinctive  action  to 
secure  issuance  thereof,  especially  since  governmental  functions  should  not 
normally  be  mixed  with  the  proprietary  enforcement  functions  of  courts  in 
adjudicating  private  rights  and  remedies. 

Certain  technical  corrections  appear  indicated  in  Title  II  as  follows : 

P.  66.  lines  22  and  23  appear  reversed. 

P.  73,  line  22,  "Section  311"  should  read— "Section  211". 

P.  73,  line  26,  "mortgage"  should  read — "mortgagee". 

Mr.  Kastenmeier.  We  would  next  like  to  call  Mr.  Rene  D.  Tegtmeyer, 
an  Assistant  Commissioner  for  Patents,  representing  the  U.S.  Depart- 
ment of  Commerce.  Would  you  please  identify  your  colleagues. 

Mr.  Tegtmeyer.  Thank  you,  Mr.  Chairman.  With  me  today  are 
David  Allen  and  Rosemary  Bowie,  both  of  whom  are  from  the  Com- 
merce Department  and  in  particular  from  Patents. 

Mr.  Kastenmeier.  I  notice  you  have  a  prepared  statement.  You  may 
proceed. 

[The  prepared  statement  of  Mr.  Tegtmeyer  follows :] 

Statement   of   Rene   D.   Tegtmeyer,   Assistant   Commissioner  for  Patents, 

U.S.  Department  of  Commerce 

Mr.  Chairman  :  I  appreciate  this  opportunity  to  appear  before  your  subcom- 
mittee to  express  the  views  of  the  Department  of  Commerce  and  its  support 
for  H.R.  2223  with  certain  modifications  which  I  shall  explain. 

H.R.  2223  is  the  result  of  20  years  of  extensive  eftort  by  the  Copyright  Office 
of  the  Library  of  Congress  and  the  Congress  to  revise  the  copyright  law.  I 
understand  that  the  testimony  of  the  Register  of  Copyrights  included  a  discus- 
sion of  the  background  concerning  this  effort  and  an  outline  of  the  principal 
provisions  of  the  bill.  I  will  not  attempt  to  be  repetitive  in  this  respect. 


160 

H.R.  2223  is  divided  into  two  titles ;  Title  I.  General  Revision  of  the  Copyriglit 
Law  and  Title  II.  Protection  of  Original  Ornamental  Designs.  As  the  Depart- 
ment views  each  title  from  a  slightly  different  perspective,  I  would  like  to  com- 
ment on  them  separately  this  morning. 

The  Department  of  Commerce  would  like  to  highlight  three  specific  areas  in 
our  comments  on  Title  I : 

1.  The  lack  of  protection  in  U.S.  government  works, 

2.  Preemption  of  state  law  with  respect  to  unfair  competition,  and 

3.  The  inclusion  of  Canada  in  the  manufacturing  requirement. 

PBOTECTION   OF   GOVERNMENT  WORKS 

Fii'st,  proposed  section  105,  in  prohibiting  copyright  protection  for  govern- 
ment works,  creates  a  special  problem  for  the  Department  of  Commerce.  Under 
Title  15,  United  States  Code,  Chapter  23.  the  Secretary  is  required  to  establish 
and  maintain  a  clearinghouse  for  the  collection  and  dissemination  of  scientific, 
technical  and  engineering  information.  This  is  done  through  the  Department's 
National  Technical  Information  Service,  called  NTIS. 

As  a  matter  of  policy.  Chapter  23  requires  that  each  of  the  services  and  func- 
tions provided  be  self-sustaining  and  self-liquidating,  as  much  as  possible,  con- 
sistent witli  its  objectives.  The  Chapter  specifically  states  its  policy  that  the 
general  public  shall  not  bear  the  cost  of  pulillcations  and  other  services  which 
are  for  the  special  use  and  benefit  of  private  groups  and  individuals. 

With  the  increased  use  of  reprography,  the  difficulty  of  meeting  the  require- 
ment to  disseminate  technical  information  on  a  ba.sis  that  pays  its  own  way  has 
increased.  It  is  cheaper  for  a  purchaser  to  buy  one  copy  of  an  expensive  techno- 
logical publication  and  photocopy  it  rather  than  to  buy  the  number  of  copies 
that  are  actually  needed.  The  lack  of  copyright  protection  for  most  periodicals 
made  available  by  NTIS  makes  this  practice  legal.  However,  if  NTIS  cannot 
recoup  the  cost  of  preparing  and  handling  its  publications,  the  dissemination, 
of  this  material  cannot  be  maintained  on  a  self-sustaining  and  .self-liquidating 
basis. 

An  example  of  the  potential  harm  which  could  arise  from  this  lack  of  copy- 
right can  be  seen  in  the  publication.  "Directory  of  Computerized  Data  Files  and 
Related  Software  Available  from  Federal  Agencies— 1974".  This  doctiment  v.-as 
prepared  in  response  to  the  large  number  of  requests  received  for  this  informa- 
tion. It  was  prepared  at  NTIS  expense.  The  approximately  $150,000  cost  of  sur- 
veyiiig  Federal  agencies  to  gather  the  information  and  publishing  the  directory 
was  not  reimbursed  from  appropriations.  In  order  to  recoup  NTIS  expenses,  a 
price  of  .$60  per  copy  was  set  for  this  150-page  directory.  Anyone  choosing  to 
make  and  sell  competing  photocopies  could  do  so  for  a  fraction  of  this  price. 
Thus,  it  was  necessary  for  NTIS  to  risk  substantial  moneys  to  produce  such 
a  pi-oduct  in  the  absence  of  copyriglit  protection. 

Unauthorized  photocopying  is  especially  serious  in  connection  with  foreign 
sales ;  out  of  the  eight  largest  customers  of  NTIS,  seven  are  foreign  entities 
which  engage  in  such  cop.ving  practices.  It  has  also  caused  NTIS  to  be  limited 
in  pricing  its  periodicals  due  to  the  much  lower  costs  of  duplication  done  by 
resale  marketers  and  potential  customers  of  government  works  which  are  not 
copyrighted. 

For  these  reasons,  we  believe  that  copyright  protection  should  be  provided 
works  distributed  imder  Chapter  23,  Title  15  of  tlie  United  States  Code,  similar 
to  that  provided  under  §  290(e),  Chapter  7(a),  Title  15,  for  standard  reference 
data  prepared  by  the  Department  of  Commerce  under  the  provisions  of  thnt 
Chapter,  or  in  the  alternative  that  the  Congress  reconsider  the  statutory 
requirement  that  the  services  and  functions  provided  under  Chapter  23  be 
self-sustaining  and  self-liquidating. 

PKEEMPTION 

Second,  we  agree  with  the  preemption  of  State  copyright  laws  pursuant  to 
section  ,301  (a),  and  with  the  principle  embodied  in  tliat  section  that  there  should 
be  a  single,  federal  system  for  copyright.  However,  the  language  of  subsection 
(b)  (8)  of  section  301  should,  in  our  view,  be  modified  to  make  it  clear  that  the 
phrase  "all  rights  in  the  iwinre  of  copyriglit"  (italics  added)  will  not  be 
construed  to  preempt  parts  of  the  Stnte  law  of  unfair  competition  which 
are  now  codified  in  statute  or  established  by  Federal  and  State  Court  decisions 
applying  the  common  law. 


161 

Section  301(b)  (3)  is  intended  to  exempt  State  unfair  competition  law  from 
the  preemptive  effect  of  section  301(a).  Among  tlie  rights  and  remedies  not 
l)reempted  are  those  arising  from  the  violation  of  rights  "not  equivalent  to  any 
exclusive  rights  within  the  general  scope  of  copyright".  These  "not  equivalent" 
rights  are  said  to  include  "breaches  of  contract,  breaches  of  trust,  invasion  of 
privacy,  defamation,  and  deceptive  trade  practices  such  as  passing  off  and  false 
representation."  The  problem  we  have  is  that  the  listing  is  incomplete  and  the 
language  is  more  limited  than  that  which  would  describe  the  present  scope 
of  established  State  unfair  competition  law. 

As  a  solution,  we  propose  a  more  comprehensive  and  inclusive  listing  of  unfair 
competition  torts  in  subsection  (b)  (3).  The  proposed  amendment : 

"(3)  Activities  violating  rights  that  are  not  equivalent  to  any  of  the  exclusive 
rights  within  the  general  scope  of  copyright  as  specified  by  section  106,  including 
breaches  of  contract,  breaches  of  trust,  invasion  of  privacy,  defamation,  and 
Cdeceptive  trade  practices  such  as  passing  off  and  false  representation]  acts, 
trade  practices,  or  courses  of  conduct  which  cause  or  are  likely  to  cause  confusion, 
mistake  or  deception,  or  which  are  likely  to  result  in  passing  off,  false  or  tnislead- 
ing  representations,  disparagement,  ivrongful  disclosure  or  misappropriation  of 
<?.  trade  secret  or  confidential  information,  or  activities  ivhich  othertvise  con- 
stitute unfair  competition  hy  misrepresentation  or  misappropriation.'"  (Deletions 
bracketed  ;  additions  italicized ) 

In  our  opinion,  this  proposed  amendment  would  more  accurately  state  the 
range  of  unfair  competition  torts  which  are  now  regulated  by  the  states,  so  that 
the  examples  listed  will  not  be  limiting. 

It  should  be  noted  that  the  phrase  "unfair  competition  by  .  .  .  misappropria- 
tion" is  included  in  our  amendment.  Obviously,  the  "misappropriation"  of  all 
of  the  words  of  a  literary  work  would  be  in  the  nature  of  copyright  and  State 
laws  in  this  area  should  be  preempted.  However,  we  do  not  believe  that  the 
entire  body  of  State  unfair  competition  law  based  upon  the  landmark  Supreme 
Court  decision  in  International  News  Service  v.  Associated  Press  (248  US  215 
(1918))  should  be  preempted.  While  some  State  decisions  relying  on  the  INS 
vane  may  be  held  inapplicable  under  section  301(a),  we  believe  that  such  a  remedy 
should  continue  to  be  available  for  the  type  of  conduct  proscribed  in  the  INS 
case. 

MANUFACTtTRING   CLAUSE 

Third,  proposed  section  601,  kno^'u  as  the  "manufacturing  clause",  essentially 
requires  that  English  language,  nondramatic  literary  works  by  Ametricau 
domiciled  authors  must  be  printed  in  the  United  States  or  Canada.  The  present 
copyright  statute  does  not  include  such  a  reference  to  Canada.  The  rationale  for 
including  Canada  appears  to  be  that  wage  standards  in  the  U.S.  and  Canada  are 
comparable. 

We  are  opposed  to  the  inclusion  of  Canada  in  this  provision.  Such  an  inchision 
would  be  a  unilateral  concession  which  we  believe  should  be  withheld  for  possible 
use  by  the  United  States  as  negotiating  leverage  in  seeing  compensating  benefits 
during  multilateral  trade  negotiations.  We  note  that  both  houses  of  Congress 
indicated  forcibly  that  United  States  negotiators  should  obtain  reciprocity  for 
United  States  concessions  when  they  enacted  the  Trade  Act  of  1974. 

Additionally,  including  Canada  in  this  provision  would  raise  problems  in  our 
relations  with  other  nations,  in  view  of  the  "most  favored  nation"  obligations  in 
the  General  Agreement  on  Tariff  and  Trade  (GATT)  and  other  treaties.  Thus, 
enactment  of  the  bill  containing  this  provision  might  bring  about  the  possibility 
of  retaliation  against  the  United  States  from  countries  other  than  Canada  and 
might  otherwise  hamper  our  efforts  to  eliminate  non-tariff  trade  barriers  in  the 
interest  of  our  overall  international  trade  objectives. 

TITLE  II 

Title  IT  of  H.R.  2223  would  provide  a  new  system  for  the  protection  of  origi- 
nal ornamental  designs  of  useful  articles. 

Designs  eligible  for  protection  under  this  title  would  have  to  be  original.  They 
cannot  be  staple  or  commonplace,  or  elements  commonly  used  in  the  relevant 
trade,  or  dictated  solely  by  utilitarian  functions,  or  three  dimensional  features 
of  wearing  apparel.  However,  there  would  be  no  requirements  that  the  design  be 
new,  and  therefore  no  search  of  prior  designs  would  be  necessary  in  order  to 
grant  protection. 


162 

Title  II  would  provide  pi-otection  only  against  copying  by  others  and  would 
not  give  an  exclusive  right  in  the  design  itself.  The  term  of  protection  would  be 
for  five  years,  renewable  for  one  additional  five-year  term. 

Infringement  would  include  making,  importing,  selling  or  distributing  for  sale 
an  article  having  a  design  copied  from  a  protected  design.  Importantly  however, 
an  Innocent  seller  or  distributor  would  be  an  infringer  only  if  he  failed  to  reveal 
his  source  and  then  reordered  the  article  after  having  received  a  personal  written 
notice  of  the  design  protection.  This  is  a  greatly  reduced  level  of  liability  when 
compared  with  that  contained  in  Title  I  where  a  seller  or  distributor  is  liable  as 
an  infringer  for  the  sale  of  a  single  unauthorized  copyrighted  work. 

Design  patent  protection  would  continue  to  be  available  but  a  design  patent 
and  design  protection  under  this  title  could  not  be  maintained  concurrently.  Also, 
copyright  protection  for  designs  would  be  continued,  except  that  if  copyright  pro- 
tection and  a  design  registration  were  obtained,  the  copyright  protection  would 
not  extend  to  utilization  of  the  design  in  the  useful  article  protected  by  the 
design  registration. 

Today,  original  ornamental  designs  for  useful  articles  may  be  eligible  for  fed- 
eral protection  under  the  patent  laws  or  in  some  instances,  under  the  copyrigiit 
law.  In  recent  years,  however,  it  has  been  generally  agreed  that  the  design 
patent  laws  do  not  provide  adequate  protection  against  design  piracy.  Because  of 
the  relatively  short-lived  popularity  of  many  designs,  a  patent  in  some  cases 
cannot  be  secured  quickly  enough  to  provide  any  useful  protection. 

The  expense  in  obtaining  a  design  patent  today  results  primarily  from  the 
fact  that  the  Patent  and  Trademark  Office  must  examine  an  application  to  deter- 
mine whether  it  is  "new,  original,  and  ornamental".  At  the  present  time  it  takes 
almost  two  years  to  obtain  a  design  patent.  Until  the  patent  is  granted,  the 
designer  or  manufacturer  markets  the  designs  at  his  own  peril,  subject  to  it 
being  freely  copied.  The  alternative  of  withholding  the  design  from  the  market 
until  the  patent  issues  is  impractical  in  many  industries  where  styles  change 
rapidly  and  may  even  be  seasonal. 

Since  the  Supreme  Court  decision  in  Mazer  v.  Stein  in  1954,  the  Copyright  OflSce 
has  accepted  an  increasing  variety  of  registrations  for  designs  embodied  in  useful 
articles  so  long  as  they  meet  the  criteria  of  being  artistic.  However,  there  are 
still  many  types  of  designs  for  which  copyright  protection  is  unavailable,  for 
instance,  furniture  and  appliances.  Moreover,  the  term  of  protection  in  the 
proposed  copyright  law,  life  of  the  author  plus  fifty  years,  is  much  too  long  for 
industrial  designs  which  have  a  relatively  short  commercial  life. 

To  exemplify  the  problems  that  exist  under  current  practice  we  note  complaints 
from  domestic  manufacturers  that  their  designs  have  been  copied  in  certain 
foreign  ureas,  particularly  in  the  far  east.  The  imitations  are  then  imported 
into  and  sold  in  the  United  States  where  they  often  enjoy  a  considerable  price 
advantage  over  the  article  produced  in  the  United  States.  We  believe  that  Title 
II  fills  the  need  for  more  effective  protection  for  design  originators  from  this  type 
of  unfair  competition  because  it  provides  quick,  inexpensive  and  short  term 
protection  for  original  designs. 

The  Department  of  Commerce  favors  this  legislation.  However,  we  would  like 
to  highlight  some  of  our  specific  recommendations  which  will  bring  title  II  of 
the  bill  more  in  line  with  other  intellectual  property  protection  both  nationally 
and  internationally  and  will  generally  improve  the  protection  offered. 

Section  204(a)  provides  that  protection  for  a  design  shall  begin  on  the  date 
when  the  design  is  first  made  public.  In  subsequent  sections  it  is  made  clear 
that  the  design  must  be  made  public  before  an  application  for  protection  can 
be  filed.  This  provision  will  put  U.S.  residents  at  a  disadvantage  if  they  desire 
to  obtain  protection  of  their  design  in  foreign  countries,  many  of  which,  for 
example  Japan,  refuse  protection  for  a  design  which  has  been  made  public 
prior  to  the  filing  of  an  application  for  registration. 

In  order  to  prevent  the  possible  loss  of  protection  in  foreign  countries,  it  should 
not  be  required  that  the  design  be  made  public  prior  to  registration.  Instead,  pro- 
tection should  commence  on  the  date  that  the  registration  is  published  in  the 
United  States  as  provided  for  in  section  212(a)  of  the  bill.  Protection  which 
begins  when  the  registration  is  published  would  provide  notice  to  the  public 
and  would  not  penalize  the  person  desiring  to  protect  his  design  outside  of  the 
United  States.  This  would  also  make  Title  II  consistent  with  Title  I  which  has 
eliminated  the  prior  publication  requirement  for  copyright  protection. 

Specific  statutory  language  to  effect  this  change  will  be  submitted  to  the 
Congress  at  a  later  date. 


163 

Section  209  appears  to  limit  an  application  to  a  single  desijjn.  This  limitation 
appears  to  be  unnecessary.  An  application  containing  ten  or  twenty  designs 
would  be  no  more  difficult  to  process  than  an  application  containing  one  design 
because  no  search  of  prior  desig-ns  is  necessary.  A  multiple  design  application 
would  save  the  applicant  paperwork,  thus,  save  him  time  and  uiouty.  It  would 
also  save  the  Administrator  processing  time  over  an  equal  number  of  single 
applications.  This  might  result  in  a  lower  fee  per  design.  As  long  as  a  separate 
fee  is  paid  for  each  design  contained  in  the  application  there  would  be  no  loss 
of  revenue  and  both  the  applicant  and  the  Administrator  would  beneHt.  We  have 
therefore  recommended  that  multiple  design  applications  be  permitted  under 
this  title. 

Title  II  requires  that  the  application  be  accompanied  by  a  statement  setting 
forth  facts  about  the  design,  and  that  such  statement  must  be  under  oath.  Similar 
requirements  in  Title  35.  United  States  Code,  covering  patent  and  trademark 
practices  permit  such  required  statements  to  be  submitted  with  a  written  declara- 
tion in  accordance  with  IS  U.S.C.  1001  making  a  false  statement  punishable  by  a 
fine  or  imprisonment  and  jeopardizing  the  validity  of  the  document.  We  believe 
that  such  a  provision  should  be  applicable  to  the  application  for  design  registra- 
tion. Therefore,  such  declaration  should  be  permitted  in  lieu  of  an  oath. 

Tlie  present  fee  provisions  of  section  215  of  this  title  are  unacceptable  to  the 
Department  of  Commerce.  In  our  opinion,  the  design  registration  system  should 
be  completely  self-supporting  because  the  benefits  of  the  design  registration 
system  only  accrue  to  the  individual  recipient  of  the  registration.  Thus,  the 
public  should  not  be  expected  to  bear  any  portion  of  the  expense  of  a  design 
registration  system. 

In  a  study  done  in  1964,  the  $15  fee  for  the  design  registration  under  a  bill 
similar  to  the  present  one,  was  found  to  be  inadequate  to  provide  100%  cost 
recovery.  The  $15  application  fee  would  be  even  more  inadequate  today. 

Rather  than  propose  different  fee  levels  for  each  of  the  functions  specified  in 
section  215  ( a ) ,  the  Department  of  Commerce  proposes  that  section  215  be  amended 
in  its  entirety  to  give  the  Administrator  the  discretion  to  establish  charges  suffi- 
cient to  recover  100%  of  the  cost  of  operation  of  the  design  registration  system. 
A  similar  approach  is  currently  being  considered  by  Congress  in  various  bills  ta 
revise  the  patent  laws. 

TESTIMONY  OF  RENE  D.  TEGTMEYER,  ASSISTANT  COMMISSIONER 
FOR  PATENTS,  DEPARTMENT  OF  COMMERCE 

Mr.  Tegtmeyer.  ISIr.  Chairman,  I  appreciate  this  opportunity  to 
appear  before  your  subcommittee  to  express  the  views  of  the  Depart- 
ment of  Commerce  and  its  support  for  H.R.  2223  with  certain  modifica- 
tions w^hich  I  shall  explain. 

TI.R.  2223  is  the  result  of  20  years  of  extensive  effort  b}'  the  Copyright 
Office  of  the  Library  of  Congress  and  the  Congress  itself  to  revise 
the  copyright  law.  I  understand  that  the  testimony  of  the  Register 
of  Copyrights  included  a  discussion  of  the  background  concerning 
this  effort  and  an  outline  of  the  principal  provisions  of  the  bill.  I  will 
attempt  not  to  be  repetitive  in  this  respect. 

H.R.  2223  is  divided  into  two  titles :  Title  I,  General  Revision  of  the 
Copyright  Law;  and  Title  II,  Protection  of  Original  Ornamental 
Designs.  As  the  Department  views  each  title  from  a  slightly  different 
perspective,  I  would  like  to  comment  on  them  sepaiately. 

The  Department  of  Commerce  would  like  to  highlight  three  specific 
areas  in  our  comments  on  title  I : 

1.  The  lack  of  protection  in  U.S.  Government  works  and  the  effect 
on  one  function  of  the  Department  of  Commei'ce, 

2.  Preemption  of  State  law  with  respect  to  unfair  competition,  and 

3.  The  inclusion  of  an  exemption  for  Canada  in  the  manufacturing 
requirements. 


164 

First,  proposed  section  105,  in  prohibiting:  copyright  protection  for 
Government  works,  creates  a  special  problem  for  the  Department 
of  Conmierce.  Under  title  15,  United  States  Code,  chapter  23,  the 
Secretary  is  required  to  establish  and  maintain  a  clearinghouse  for  the 
collection  and  dissemination  of  scientific,  technical,  and  engineering 
information.  This  is  done  through  the  Department's  National  Tech- 
nical Information  Service,  called  NTIS. 

As  a  matter  of  policy,  chapter  23  in  section  1153  requires  that  each 
of  the  services  and  functions  provided  be  self-sustaining  and  self- 
liquidating,  as  much  as  possible,  consistent  with  its  objectives.  The 
chapter  specifically  states  its  policy  that  the  general  public  shall  not 
bear  the  cost  of  publications  and  other  services  which  are  for  the  special 
use  and  benefit  of  private  groups  and  individuals. 

With  the  increased  use  of  reprogi'aphy,  the  difficulty  of  meeting  the 
requirement  to  disseminate  technical  information  on  a  basis  that  pays 
its  own  way  has  also  increased.  It  is  cheaper  for  a  purchaser  to  buy 
one  copy  of  an  expensive  technological  publication  and  photocopy 
it  rather  than  to  buy  the  number  of  copies  that  are  actuallj^  needed. 
The  lack  of  copyright  protection  for  most  periodicals  made  available 
by  NTIS  makes  this  practice  legal.  If  NTIS  cannot  recoup  the  cost 
of  lu-eparing  and  handling  its  publications,  the  dissemination  of  this 
material  cannot  be  maintained  on  a  self-sustaining  and  self-liquidating 
basis. 

An  example  of  the  potential  harm  which  could  arise  from  this  lack 
of  copyright  can  be  seen  in  the  publication,  "Directory  of  Computer- 
ized Data  Files  and  Related  Software  Available  from  Federal  Agen- 
cies—1974." 

This  document  was  prepared  in  response  to  the  large  number  of 
requests  received  for  this  information.  It  was  prepared  at  NTIS 
expense.  The  approximately  $150,000  cost  of  surveying  Federal  agen- 
cies to  gather  the  information  and  publishing  the  directory  was  not 
reimbursed  from  appropriations.  In  order  to  recoup  NTIS  expenses,  a 
price  of  $80  per  copy  was  set  for  this  150-page  directory.  Anyone 
choosinrr  to  make  aiid  sell  competing  photocopies  could  do  so  for  a  frac- 
tion of  this  price.  Thus,  it  was  necessary  for  NTIS  to  risk  substantial 
moneys  to  produce  such  a  product  in  the  absence  of  copyright 
protection. 

I^nauthorized  photoco):>3^ino:  is  especially  serious  in  connection  with 
foreign  sales;  out  of  the  eight  largest  customers  of  NTIS,  seven  are 
foreign  entities  which  engage  in  such  copving  practices.  It  has  also 
caused  NTIS  to  be  limited  in  pricing  periodicals  due  to  the  much  lower 
cost  of  duplication  done  by  resale  marketers  and  potential  customers  of 
Go^-emment  works  which  are  not  copyriglited. 

For  these  reasons,  we  believe  that  copyright  protection  should  be 
provided  for  M^orks  distri]>uted  under  chai)ter  23,  title  15,  similar  to 
that  provided  under  ^  290(e),  chapter  7(a),  title  15,  for  standard 
reference  data  prepared  by  the  Departmen.t  of  Commerce  under  the 
provisions  of  that  chapter,  or  in  the  alternative  that  the  Congress 
reconsidpr  the  statutory  requirement  that  the  services  and  functions 
provided  under  chapter  23  by  NTIS  be  self-sustaining  and  self- 
liquidating. 

Turning  to  the  question  of  preemption,  we  agree  with  the  preemp- 
tion of  State  copyright  laws  pursuant  to  section  301(a),  and  with 


165 

the  principle  embodied  in  that  section  that  there  shoiikl  be  a  single, 
Federal  system  for  copyright.  However,  the  language  of  subsection 
(b)  (3)  of  section  301  should,  in  our  view,  be  modified  to  make  it  clear 
that  the  phrase  "all  rights  in  the  nature  of  copyright"  will  not  b© 
construed  to  preem})t  parts  of  the  State  law  of  unfair  competition 
which  are  now  codified  in  statute  or  established  by  Federal  and  State 
court  decisions  applying  the  common  law.  _  . 

Section  301(b)  (3)  is  intended  to  exempt  State  unfair  competition 
law  from  the  preemptive  effect  of  section  301(a).  Among  the  rights 
and  remedies  not  preempted  are  those  arising  from  the  violation  of 
rights  "not  equivalent  to  any  exclusive  rights  within  the  general  scope 
of  copyright."  These  "not  equivalent"  rights  are  said  by  the  bill  to 
include  "breaches  of  contract,  breaches  of  trust,  invasion  of  privacy, 
defamation,  and  deceptive  trade  practices  such  as  passing  off  and  false 
representation."  The  problem  we  have  is  that  this  listing  is  incom- 
plete, and  the  language  is  more  limited  than  that  which  would  de- 
scribe the  present  scope  of  established  State  unfair  competition  law. 

As  a  solution,  we  propose  a  more  comprehensive  and  inclusive  listing 
of  unfair  competition  torts  in  subsection  (b)  (3) .  The  proposed  amend- 
ment : 

(3)  Activities  violating  rights  that  are  not  equivalent  to  any  of  the  exclusive 
rights  within  the  general  scope  of  copyright  as  specified  by  section  106,  including 
breaches  of  contract,  breaches  of  trust,  invasion  of  privacy,  defamation,  and 
acts,  trade  practices,  or  courses  of  conduct  which  cause  or  are  likely  to  cause 
confusion,  mistake  or  deception,  or  which  are  likely  to  result  in  passing  off,  false 
or  misleading  representations,  disparagement,  wrongful  disclosure  or  misappro- 
priation of  a  trade  secret  or  confidential  information,  or  activities  which  otherwise 
constitute  unfair  competition  by  misrepresentation  or  misappropriation. 

In  our  opinion,  this  proposed  amendment  would  more  accurately 
stat*^-  the  range  of  unfair  competition  torts  which  are  now  regulated 
by  the  States,  so  that  the  examples  listed  will  not  be  limiting. 

It  should  be  noted  that  the  phrase  "unfair  competition  by  *  *  * 
misappropriation"  is  included  in  our  amendment.  Obviously,  the 
"misappropriation"  of  all  of  the  words  of  a  literary  work  would  be 
in  the  nature  of  copyright,  and  State  laws  in  this  area  should  be  pre- 
empted. However,  we  do  not  believe  that  the  entire  body  of  State 
unfair  competition  law  based  upon  the  landmark  Supreme  Court  deci- 
sion in  rnfernat'/onal  Neivs  Service  v.  Associated  Press  (248  U.S.  215 
(1918) )  should  be  preempted.  While  some  State  decisions  relying  on 
the  lA^iS  case  may  be  held  inapplicable  under  section  801(a),  we  be- 
lieve that  such  a  remedy  should  continue  to  be  available  for  the  type 
of  conduct  proscribed  in  the  IiVS  case. 

Turning  to  the  third  point  in  title  I,  the  proposed  section  601.  known 
as  the  "manufacturing  clause,"  essentially  requires  that  English  lan- 
guage, nondramatic  literary  works  by  American  domiciled  authors 
must  be  pi'inted  in  tlie  United  States  or  Canada.  The  present  copyright 
statute  does  not  include  such  a  reference  to  Canada.  The  rationale  for 
including  Canada  appears  to  be  that  wage  standards  in  the  United 
States  and  Canada  are  comparable. 

We  are  opposed  to  the  inclusion  of  Canada  in  this  provision.  Such 
an  inclusion  would  be  a  unilateral  concession  which  we  believe  should 
be  withheld  for  possible  use  by  the  United  States  as  negotiating  lever- 
age in  seeking  compensating  benefits  during  multilateral  trade  nego- 
tiations. We  note  that  both  Houses  of  Congress  indicated  forcibly  that 


166 

U.S.  negotiators  should  obtain  reciprocity  for  U.S.  concessions  when 
they  enacted  the  Trade  Act  of  1974,  at  the  end  of  the  last  Congress. 
Additionally,  including  Canada  in  this  provision  would  raise  prob- 
lems in  our  relations  with  other  nations,  in  view  of  the  "most  favored 
nation"  obliirations  in  the  General  Agreement  on  Tariff  and  Trade 
(GATT)  and  other  treaties.  Thus,  enactment  of  the  bill  containing 
this  provision  might  bring  about  the  possibility  of  retaliation  against 
the  United  States  from  countries  other  than  Canada  and  might  other- 
Avise  hamper  our  efforts  to  eliminate  nontariff  trade  barriers  in  the 
interest  of  our  overall  international  trade  objectives. 

If  I  may  turn  to  title  II  of  H.R.  '2223,  that  would  provide  a  new 
system  for  the  protection  of  original  ornamental  designs  of  useful 
articles. 

Designs  eligible  for  protection  under  this  title  would  have  to  be  orig- 
inal. They  cannot  be  staple  or  commonplace,  or  elements  commonly 
used  in  the  relevant  trade,  or  dictated  by  utilitarian  functions,  or  three 
dimensional  features  of  wearing  apparel.  However,  there  would  be  no 
requirements  that  the  design  be  new,  and  therefore  no  search  of  prior 
designs  would  be  necessary  in  order  to  grant  protection. 

Title  II  would  provide  protection  only  against  copying  by  others 
and  Mould  not  give  an  exclusive  right  in  the  design  itself.  The  term  of 
protection  would  be  for  5  years,  renewable  for  one  additional  5-year 
lenn. 

Infringement  would  include  making,  importing,  selling,  or  distrib- 
nting  for  sale  an  article  having  a  design  copied  from  a  protected 
design.  Importantly  however,  an  innocent  seller  or  distributor  would 
be  an  infringer  only  if  he  failed  to  reveal  his  source  and  then  reordered 
the  article  after  having  received  a  personal  written  notice  of  the  design 
protection. 

This  is  a  greatly  reduced  level  of  liability  when  compared  with  that 
contained  in  title  I  where  a  seller  or  distributor  is  liable  as  an  infringer 
for  the  sale  of  a  single  unauthorized  copyrighted  work. 

Design  patent  protection  would  continue  to  be  available,  but  a  design 
patent  and  design  protection  under  this  title  could  not  be  maintained 
concurrently.  Also,  copyright  protection  for  designs  would  be  con- 
tinued, except  that  if  copyright  protection  and  a  design  registration 
were  obtained,  the  copyright  protection  would  not  extend  to  utilization 
of  the  design  in  the  useful  article  protected  by  the  design  registration. 
Today,  original  ornamental  designs  for  useful  articles  may  be  eligi- 
ble for  Federal  protection  under  the  patent  laws  or  in  som.e  instances, 
under  the  copyright  law.  In  recent  years,  however,  it  has  been  gen- 
erally agreed  that  the  design  patent  laws  do  not  provide  adequate  pro- 
tection against  design  piracy.  Because  of  the  relatively  short-lived 
popularity  of  many  designs,  a  patent  in  some  cases  cannot  be  secured 
quickly  enough  to  provide  any  useful  protection. 

The"  expense  in  obtaining  a  design  patent  today  results  primarily 
from  the  fact  that  the  Patent  and  Trademark  Office  must  examine  an 
application  to  determine  whether  it  is  "new,  original,  and  ornamental." 
At  tlie  present  time  it  takes  almost  2  years  to  obtain  a  design  patent. 
Until  the  patent  is  granted,  the  designer  or  manufacturer  markets  the 
design  at  liis  own  peril,  subject  to  it  being  freely  copied.  The  alterna- 
tive of  withholding  the  design  from  the  market  until  the  patent  issues 


167 

is  impractical  in  many  industries  where  styles  change  rapidly  and  may 
even  be  seasonal. 

Since  the  Supreme  Court  decision  in  Mazer  v.  Stein  in  1954,  the 
Copyright  Office  has  accepted  an  increasing  variety  of  registrations 
for  designs  embodied  in  useful  articles  so  long  as  they  meet  the  criteria 
of  being  artistic.  However,  there  are  still  many  types  of  designs  for 
which  copyright  protection  is  unavailable,  for  instance,  furniture  and 
appliances.  Moreover,  the  term  of  protection  in  the  proposed  copy- 
right law,  life  of  the  author  plus  50  years,  or  even  the  present  law,  28 
years,  is  much  too  long  for  industrial  designs  which  have  a  relatively 
short  commercial  life. 

To  exemplify  the  problems  that  exist  under  current  practice  we 
note  complaints  from  domestic  manufacturers  that  their  designs  have 
been  copied  m  certain  foreign  areas,  particularly  in  the  Far  East,  The 
imitations  are  then  imported  into  and  sold  in  the  United  States 
where  they  often  enjoy  a  considerable  price  advantage  over  the  article 
produced  here.  We  believe  that  title  II  fills  the  need  for  more  effective 
protection  for  design  originators  from  this  type  of  unfair  competition 
because  it  provides  quick,  inexpensive,  and  short-term  protection  for 
original  designs. 

The  Department  of  Commerce  favors  this  legislation.  However,  we 
would  like  to  highlight  some  of  our  specific  recommendations  which 
will  bring  title  II  of  the  bill  more  in  line  with  other  intellectual  prop- 
erty protection  botli  nationally  and  internationally  and  will  generally 
improve  the  protection  offered. 

Section  204(a)  provides  that  protection  for  a  design  shall  begin 
on  the  date  when  the  design  is  first  made  public.  In  subsequent  sections 
it  is  made  clear  that  the  design  must  be  made  public  before  an  applica- 
tion for  protection  can  be  filed.  This  provision  will  put  U.S.  residents 
at  a  disadvantage  if  they  desire  to  obtain  protection  of  their  design  in 
foreign  countries,  many  of  which,  for  example,  Japan,  refuse  protec- 
tion for  a  design  which  has  been  made  public  prior  to  the  filing  of  an 
application  for  registration. 

In  order  to  prevent  the  possible  loss  of  protection  in  foreign  coun- 
tries, it  should  not  be  required  that  the  design  be  made  public  prior  to 
registration.  Instead,  protection  should  commence  on  the  date  that  the 
registration  is  published  in  the  United  States  as  provided  for  in  sec- 
tion 212(a)  of  the  bill.  Protection  which  begins  when  the  registra- 
tion is  published  would  provide  notice  to  the  public  and  would  not 
penalize  the  person  desiring  to  protect  his  design  outside  of  the  United 
States.  This  would  also  make  title  II  consistent  with  title  I  which  has 
eliminated  the  prior  publication  requirement  for  copyright  protection. 

Specific  statutory  language  to  effect  this  change  will  be  submitted  to 
the  Congress  at  a  later  date. 

Section  20D  appears  to  limit  an  application  to  a  single  design.  This 
limitation  appears  to  be  unnecessary.  An  application  containing  10  or 
20  designs  would  be  no  more  difficult  to  process  than  an  application  con- 
taining 1  design  because  no  search  of  prior  designs  is  necessary.  A 
multiple  design  application  would  save  the  applicant  paperwork, 
thus,  save  him  time  and  money.  It  would  also  save  the  Administrator 
processing  time  over  an  equal  number  of  single  applications.  This 
might  result  in  a  lower  fee  per  design.  As  long  as  a  separate  fee  is  paid 


168 

ior  each  design  contained  in  the  application  there  would  be  no  loss  of 
revenue  and  both  the  applicant  and  the  Administrator  would  benefit. 
We  have  therefore  recommended  that  multiple  design  applications  be 
p-^iTnitted  under  this  title. 

Title  II  requires  that  the  application  be  accompanied  by  a  statement 
setting  forth  facts  about  the  design,  and  that  such  statement  be  un- 
der oath.  Similar  requirements  in  title  35,  United  States  Code,  cover- 
ing patent  and  trademark  practices,  permit  such  required  statements 
to  be  submitted  with  a  written  declaration  in  accordance  with  18  U.S.C. 
1001  making  a  false  statement  punishable  by  a  fine  or  imprisonment 
and  jeopardizing  the  validity  of  the  document.  We  believe  that  such 
a  provision  should  be  applicable  to  the  application  for  design  registra- 
tion. Therefore,  such  declaration  should  be  permitted  in  lieu  of  an 
oath. 

The  present  fee  provisions  of  section  215  of  this  title  are  unaccept- 
able to  the  Department  of  Commerce.  In  our  opinion,  the  design  i"eg- 
istration  system  should  be  completely  self-supporting  because  the  bene- 
fits of  the  design  registration  system  only  accrue  to  the  individual 
I'ecipient  of  the  registration.  Thus,  the  public  should  not  be  expected 
to  bear  any  portion  of  the  expense  of  a  design  registration  system. 
Their  benefits  are  too  remote. 

In  a  study  done  in  1964,  the  $15  fee  for  the  design  registration  under 
a  bill  similar  to  the  present  one,  was  found  to  be  inadequate  to  provide 
100-percent  cost  recovery.  The  $15  application  fee  would  be  even  more 
inadequate  today. 

Rather  than  propose  different  fee  levels  for  each  of  the  functions 
specified,  the  Department  of  Commerce  proposes  that  section  215  be 
amended  in  its  entirety  to  give  the  Administrator  the  discretion  to 
establish  charges  sufficient  to  recover  100  percent  of  the  cost  of  opera- 
tion of  the  design  registration  system.  A  similar  approach  is  currently 
being  considered  by  Congress  in  various  bills  to  revise  the  ])atent  laws. 
Mr.  Kastenmeier.  Thank  you,  Mr.  Tegtmeyer.  Who  is  the  adminis- 
trator under  this  particular  pi'O vision  ? 

Mr.  Tegtmeyer.  The  administrator  would  be  designated  by  the 
President  if  the  bill  were  passed  in  the  form  it  is. 

Mr.  Kastenmeier.  Is  it  presumed  that  such  an  administrator  would 
be  separate  or  part  of  the  Copyright  Office  or  the  Patent  Office  or 
what? 

Mr.  Tegtmeyer.  The  assumption  is  that  the  administrator  would  he 
with  the  Patent  and  Trademark  Office  in  the  Department  of 
Commerce. 

Mr.  Kastenmeier.  Why  are  we  unable  to  modify  the  patent  laws  to 
otherwise  effect  more  reasonable  treatment  of  design  applications  so 
that  this  whole  title  would  be  unnecessary,  so  it  could  be  handled  under 
the  present  law  ? 

Mr.  Tegtmeyer.  We  presently  have  that  objective,  to  reduce  that 
pendency  for  utility  and  design  patents  to  18  months.  Even  though  that 
time  is  lagging  a  little  bit  we  expect  that  that  wait  will  be  reduced  to 
18  months  in  the  very  near  future.  The  reason  for  requiring  that  length 
of  time  is  the  fact  that  we  must  examine  the  application  to  determine  if 
it  meets  the  criteria  set  forth  in  the  ]n-esent  statute  and  this  cannot  be 
done  during  the  short  period  in  vv'hich  you  can  register  a  design. 

Mr.  Kastenmeier.  Would  the  administrator  be  under  the  Commis- 
sioner of  Trademarks  and  Patents  for  the  j^urpose  of  direction? 


169 

Mr.  Tegtmeyer.  I'm  not  attempting  to  presume  that  the  President 
would  in  fact  designate  the  Patent  and  Trademark  Office  as  admin- 
istrator but  it  would  presumably  be  placed  there,  under  the  Com- 
missioner of  Patents  and  Trademarks,  if  it  was  placed  there  at  all. 

Mr,  Kastenmeier.  Are  you  satisfied  that  title  II  is  to  be  considered  a 
part  of  the  general  revision  of  the  copyright  law  or  do  you  think  it 
more  appro])riate  that  it  ought  to  be  considered  by  itself  ? 

Mr.  Tegtjueyer.  We  are  satisfied  that  it  is  to  be  considered  as  a  gen- 
eral part  of  the  copyright  laws. 

Mr„  Kastenmeier.  Do  I  understand  that  the  revisions  that  you  sug- 
gest are  unlike  patents  in  that  you  would  go  by  first  to  file  criteria 
rather  than  a  first  to  invent  ? 

Mr.  Tegtmeyer.  We're  talking  about  a  requirement  in  order  to  ob- 
tain protection  as  to  origination,  the  party  that  originates  the  design 
and  filed  and  application  therefore  could  obtain  the  protection;  noth- 
ing would  prevent  someone  else  from  initiating  the  same  design  and 
also  obtaining  the  same  protection. 

Mr.  Kastenmeier.  I  read  your  statement  which  says  that  instead  pro- 
tection should  commence  on  the  day  that  the  registration  is  published 
as  a  deviation  from  the  theoiy  that  a  copyright  patent  protection  is 
other  than  the  rest  of  the  world,  it  is  in  essence  a  first  to  file  protec- 
tion or,  in  this  situation,  publication  rather  than  the  first  use  of  a 
design  ? 

Mr.  Tegtmeyer.  Yes,  in  some  respects. 

Mr.  Kastenmeier.  This  is  a  matter  of  understanding,  I  guess.  You 
state  that  the  designs  to  be  eligible  would  have  to  be  original,  however, 
there  are  no  requirements  that  the  desigii  be  new.  What  is  the  distinc- 
tion, the  practical  distinction,  for  our  purposes? 

Mr.  Tegtmeyer.  The  distinction  would  be  that  if  you  originated  a 
design  that  somebody  else  originated  in  the  past  or  created  in  the  past., 
then  you  may  still  obtain  protection  so  long  as  you  were  not  copying 
the  former  individual's  design  and  you  developed  it  totally  inde- 
pendently through  your  own  originality. 

Mr.  Kastenmeier.  I  see.  The  other  part  of  your  testimony,  do  I 
understand,  that  unlike  others  who  have  testified,  you  support  reten- 
tion of  the  manufacturing  clause  basically  so  it  can  be  used  essentially 
as  a  negotiating  factor  ? 

Mr,  Tegtinieyer.  I  think  our  views  are  very  similar  to  those  of  the 
Department  of  State.  There  is  an  opportunity  here  to  use  exceptions 
to  the  manufacturing  clause  for  the  purposes  of  negotiation  in  multi- 
lateral trade  negotiations  when  they  take  place.  Such  negotiations  are 
beginning  to  take  place  now  and  will  begin  on  a  more  formal  basis 
later  in  the  year. 

Mr.  Kastenmeier.  Maybe  I  misunderstood.  I  understood  them  to  sug- 
gest that  the  existence  of  the  manufacturing  clause  causes  us  a  great 
deal  of  difficulty.  I  did  not  understand  that  they  wanted  it  retained  to 
use  as  leverage  for  future  negotiations. 

Mr.  Tegtmeyer.  We  would  agree  with  the  elimination  of  the  manu- 
facturing clause  over  possibly  a  period  of  time  as  they  indicated  in 
response  to  your  question.  Our  point  about  negotiations  was  pri- 
marily that,  if  the  manufacturing  clause  was  to  stay  and  if  Canada 
was  to  be  placed  in  it,  we  ought  to  obtain  some  compensation  for  add- 
ing the  exemption  for  Canada  in  multilateral  trade  negotiations. 

57-786 — 76 — pt.  1 12 


170 

Mr.  Kastexmeier.  Do  you  not  understand  those  who  have  thus  far 
designed  the  copyright  bill  to  specifically  exclude  State  unfair  com- 
petition laws  for  a  reason  ? 

Mr.  Tegtmeyer.  I  mentioned  in  the  testimony  that  we  agree  with 
the  preemption  of  the  State  laws  as  to  copyright-type  protection  but 
feel  that  the  bill  should  not  upset  the  present  protection  that  is  avail- 
able under  State  statutes  and  the  common  law  of  unfair  competition. 
We  specifically  mentioned  the  International  News  case  in  this  comiec- 
tion.  That  case  represents  an  example  of  one  area  wliich  we  partic- 
ularly feel  should  not  be  preempted  by  the  copyright  law  because  the 
copyright  law  does  not  provide  the  same  nature  of  protection  that  the 
International  Netos  case  decision  does. 

That  is,  the  content  of  the  news  was  protected  in  that  case  as  opposed 
to  the  wording  or  manner  of  expression  of  the  news. 

Mr.  Kastenmeier,  On  that  point,  have  you  conferred  with  the  Copy- 
right Office  or  any  other  Federal  agencies  ?  Do  you  find  them  in  agree- 
ment with  your  position? 

Mr.  Tegtmeyer.  We  have  been  in  contact  with  some  other  Federal 
agencies  and  in  contact  with  the  Copyright  Office,  as  well.  We  have 
not  found  agreement  with  our  position  on  all  points. 

]Mr.  Kastenmeier.  Thank  you.  I  yield  to  the  gentleman  from  Il- 
linois. Mr,  Kailsback. 

Mr.  Railsback.  Mr.  Tegtmeyer,  I  find  myself  in  somewhat  of  a 
dilemma ;  who  actually  speaks  for  the  administration  ? 

There  seem  to  be  disagreements  with  virtually  everybody.  We  have 
the  Department  of  State  disagreeing  with  evervbody  except  on  the 
manufacturing  clause  and  now  we  have  the  Department  of  Commerce 
that  takes  a  different  view.  Does  anyone  purport  to  speak  for  the 
administration? 

Mr.  Tegtmeyer.  Our  testimony  only  purports  to  speak  for  the  De-^ 
partment  of  Commerce. 

jNIr.  Railsback.  The  Justice  Department  testified  with  respect  to 
title  II  that  they  were  concerned  that  this  title  would  afford  some  new 
protection,  but  it  would  not  include  a  finding  of  novelty  or  obvious- 
ness ;  wliat  do  you  think  of  that  ? 

]Mr.  Tegtmeyer.  Copyriglit  law  presently,  and  as  proposed  in  title 
I.  does  not  require  a  test  of  novelty  or  unobviousness  for  protection. 
The  test  applied  in  the  design  legislation  is  one  of  originality.  In- 
fringement is  accomplished  by  copying  the  desigTi  literally  rather 
than  by  separate  origination.  So  the  protection  provided  by  title  II 
is  more  in  the  nature  of  copyright  j^rotection  rather  than  patent. 

Mr.  Railsback.  So,  you  would  disagree  that  a  finding  by  the  Gov- 
ernment of  unobviousness  is  needed  ? 

]\Ir.  Tegtimeyer.  Yes;  we  do.  The  bill  provides  protection  in  one 
area  that  would  not  be  protected  by  the  present  patent  laws  and 
where  there  is  design  piracy  occurring.  Protection  under  title  II  is 
desirable  because  of  the  requirement  of  novelty  and  unobviousness 
in  the  patent  law  and  because  of  the  fact  that  the  copyright  laws 
as  they  exist  today  have  not  been  extended  to  cover  all  of  the  designs 
that  are  covered  in  the  proposed  legislation  in  title  II. 

]\rr.  Railsback.  You  are  not,  I  presume,  suggesting  that  your  De- 
partment favors  section  601  ?  I  think  Mr.  Kastenmeier  asked  you  and 


171 

you  appeared  to  indicate  primary  concern,  about  the  inclusion  of 
Canada  but,  you  don  t  favor  a  munuiacturing  clause,  or  do  you  ^ 

Mr.  Tegtmeyer.  V\  e  do  not  favor  a  numufacturintr  clause  aside  from 
the  question  as  to  whether  or  not  Canada  should  be  exempted. 

Mr.  Kau.sback.  So  in  that  respect  your  testimony  is  not  at  variance 
with  the  other  agencies  ? 

Mr.  Tegtmeyer.  No. 

]Mr.  Kailsback.  If  you  can  keep  track  of  all  of  that  differing 
testimony. 

Mr.  Tegtmeyer.  AVe  did  make  the  additional  point  of  saying  that  if 
Canada  was  to  be  included  as  an  exception  in  the  manufacturing  clause 
that  it  be  done  by  the  use  of  its  exception  in  negotiations  with  other 
countries  as  leverage  to  get  something  in  return. 

Mr.  Railsback.  You  do  favor,  do  you  not,  the  prepared  expansion 
of  the  duration  of  a  copj'right  ? 

]\Ir.  Tegtmeyer.  Yes;  we  do.  In  that  respect,  I  might  point  out  that 
we  have  reviewed  the  reasons  for  extending  the  copyright  term  that 
were  set  forth  in  one  of  the  earlier  reports  on  copyright  revision  legis- 
lation. I  might  note,  in  particular,  Eeport  No.  83  from  the  90th  Con- 
gress first  session.  It  is  a  report  of  the  chairman,  Mr.  Kastenmeier, 
for  the  Committee  on  the  Judiciary.  On  pages  100  through  103  there 
are  a  num.ber  of  what  we  feel  are  well- justified  reasons  for  extending 
the  term  of  copyright  to  life  of  the  author  plus  50  years.  In  the  report, 
there  are  some  seven  such  reasons  listed.  The  committee  at  that  time 
stated,  and  I  quote  from  page  102  of  the  report,  "The  committee 
concluded  that  the  need  for  a  longer  total  term  of  copyright  had  been 
conclusively  demonstrated." 

Later  in  the  report  it  stated,  "The  committee  has  concluded  that 
an  author's  copyright  should  extend  beyond  his  lifetime  and,  judged  by 
this  standard,  the  present  term  of  5G  years  is  too  short."  There  are 
some  seven  reasons  set  forth  which  we  feel  are  consistent  with  the 
purpose  of  the  copyright  law,  that  is  to  further  creativity  in  writings 
and  so  forth  under  the  Constitution. 

Mr.  Railsback.  I  think  you've  been  very  helpful. 

jSIr.  Kastenmeier.  Mr.  Danielson. 

'Sir.  Daxielsox.  Do  you  know  whether  foreign  states  have  a  com- 
parable provision  to  our  title  II  to  protect  original  ornamental  designs  ? 

Mr.  Tegtmeyer.  Most  foreign  countries  have  a  provision  similar 
generally,  at  lefist,  to  title  II  and  there  is  an  international  convention. 
The  Hague  Agreement  for  the  International  Deposit  of  Industrial 
Designs.  I  am  not  sure  of  the  number  of  countries  involved. 

Mr.  Daxielsox.  Are  we  a  party  ? 

Mr.  Tegt3Ieyer.  No.  I  am  not  sure  whether  we  would  want  to  be  be- 
cause of  certain  provisions  in  the  convention. 

Mr.  Daxielson.  One  problem  I  have,  one  of  the  provision  qualifiers 
is  that  it  be  ornamental ;  isn't  that  almost  entirely  subjective  ? 

Mr.  Tegtmeyer.  Essentially,  it  is  the  type  of  test  as  applied  under 
the  copyright  law  presently  with  respect  to  desigrns. 

Mr.  Daxielson.  But  beauty  is  still  in  the  eye  of  the  beholder  and  I 
have  a  problem  with  this.  I  don't  know.  I  need  an  answer  to  this,  I 
need  convincing.  Thank  vou. 


172 

Mr.  Tegtmeyer.  If  I  may  add  one  point  that  may  be  helpful,  one 
thing  you  can  do  is  to  compare  the  fact  that  it  must  be  ornamental  as 
opposed  to  functional. 

Mr.  Daxielson.  Yes ;  but  it  is  also,  as  I  read  the  Code  provisions,  I 
think  it  relates  to  prettiness  or  beauty ;  I  have  a  problem  with  this. 

Mr.  Tegtmeyer.  That's  not  the  intent  of  the  provision  as  we  under- 
stand it. 

Mr.  Drinan.  I  wonder  if  I  might  ask  one  question.  If  you  would 
just  give  us  an  example.  How  many  of  these  fundamental  things  you 
have  described  could  or  would  get  a  copyright  or  patent  I 

Mr.  Tegtmeyi:r.  That  would  be  difficult  to  predict  because  you  don't 
laiow  whether  or  not  they  would  meet  the  test  of  novelty  for  patent 
protection. 

Mr.  Drinan.  In  your  testimony  you  suggest  only  two  areas  and  they 
are  furniture  and  appliances.  But,  you  give  us  a  for  instance  on  what 
type  of  tilings  might  come  under  title  II  ? 

Mr.  Tegtmeyer.  Linoleum  and  wall  coverings,  which  I  believe  are 
covered  under  the  present  copyright  law  as  it  is  interpreted,  as  well 
as  furniture  designs,  appliances  and  other  household  goods  which 
would  have  a  design,  an  original  design. 

Mr.  Drinan.  Do  you  fear  any  possibility  of  restraining  trade  or 
even  monopoly  ? 

Mr.  Tegtmeyer.  We  feel  the  protection  is  in  the  nature  of  a  copy- 
right provision  and  is  only  against  copying.  If  you  compare  it  to 
piracy  of  tapes  and  records,  we  find  it  very  similar.  We  are  talking 
about  someone  who  has  pirated  or  copied  a  design,  not  somebody  who 
has  independently  originated  it  himself. 

Mr.  Drinan.  I  tend  to  agree  with  ISIr.  Eailsback  that  there  is  too 
much  confusion,  but  your  testimony  has  been  helpful.  I  wish  we  had 
longer. 

Mr.  Kaskenmeier.  On  behalf  of  the  committee,  we  appreciate  your 
appearance  again  before  us  on  a  slightly  diif erent  type  of  bill  than  you 
normally  appear  before  us  with  and  we  wish  to  thank  your  col- 
leagues. This  concludes  the  testimony  this  morni)ig  on  the  subject  of 
the  revision  of  copyright  laws.  We  shall  next  meet  as  a  subcommit- 
tee on  ]May  14,  Wednesday  at  10  a.m.  in  room  2226  for  further  hear- 
ings. 

[Reports  on  H.R.  2223  were  received  by  the  subcommittee  from  the 
Department  of  State,  the  Acting  Librarian  of  Congress,  and  the  Na- 
tional Aeronautics  and  Space  Administration,  as  follov/s:] 

Department  of  State, 
Washington,  D.C.,  May  7,  19'75. 
ITon.  Peter  W.  Rodino,  Jr., 
Chairman,  Committee  on  the  Judiciary, 
House  of  Representatives,  Washington,  D.C. 

Dear  Mr.  Chairman  :  The  Secretary  has  asked  that  I  respond  to  your  letter  of 
February  10,  1975,  requestin.e:  the  Department  of  State's  views  on  H.R.  2223, 
for  the  general  revision  of  the  Copyright  Law,  Title  17  of  the  United  States 
Code,  and  for  other  purjjoses. 

The  first  copyright  law  of  the  United  States  was  enacted  by  the  Fir.st  Congress 
in  17f)0,  with  comprehensive  revisions  being  enacted  at  intervals  of  about  40 
years,  in  1S31.  1870  and  1909.  The  present  U.S.  copyright  law,  title  17  of  the 
United  States  Code,  is  basically  the  same  as  the  Act  of  1909.  During  the  ensuing 
yeai's  tremendous  strides  have  been  made  in  technology  and  te<.'hni(iues  for 
communicating  printed  matter,  vi.sual  images,  and  recorded  sounds.  The.se  te<"h- 
nical  advances  have  generated  new  industries  and  methods  for  the  reprotluetioa 


173 

tind  dissemination  of  copyriglited  works  and  new  business  relationships  have 
developed  between  authors  and  users.  Although  these  two  groups  have  differed 
on  various  issues,  both  recognize  the  1909  statute  does  not  stimulate  authors  to 
create  or  reward  them  for  their  efforts  and  fails  to  consider  present  or  future 
technological  developments  in  communications. 

Although  we  tali;e  exception  to  one  section  of  H.R.  2223,  the  Department  other- 
wise supports  the  enactment  of  this  important  legislation.  Our  comments  on 
H.R.  2223  are  directed  to  those  sections  which  relate  to  the  conduct  of  our  foreign 
relations  and  therefore  are  of  interest  to  the  Department.  These  sections  are  the 
following:  Section  104  concerning  subject  matter  of  copyright  and  national 
origin ;  Section  302  on  the  duration  of  protection,  and  Section  601  relative  to 
restrictions  against  importation  of  certain  copyrighted  materials  from  other 
countries. 

ISectlon  10^.     Subject  Matter  of  Copyright:  National  Origin — (c) . 

Tlie  Department  supports  the  aim  of  tliis  section  which  is  to  deal  with  the 
possibility  that  action  may  be  instituted  in  L-uited  States  courts  by  a  foreign 
government  to  divest  its  citizens  or  autliors  of  rights  to  their  works  or  block 
publication  of  their  works  within  the  United  States.  We  do  not  have  any  evidence 
tliat  an  action  of  this  nature  is  likely  to  occur.  If  it  did,  however,  it  would  rep- 
resent undesirable  official  interference  with  the  freedom  of  expression,  and  we 
therefore  believe  that  it  should  be  guarded  against.  The  international  copyriglit 
system  embodied  in  the  Universal  Copyi'ight  Convention  is  intended  to  '"insure 
the  respect  for  the  rights  of  the  individual  and  encourage  the  development  of 
literature,  the  sciences  and  tlie  arts".  The  obligations  contained  in  the  Convention 
.shouUl  not  become  the  vehicle  to  suppress  free  communication  in  tlie  United 
States  of  ideas  and  literature  unacceptable  to  authorities  of  some  signatories 
to  the  Convention. 

Were  such  a  provision  to  be  enacted,  it  would  be  necessary  to  avoid  language 
which  might  inadvertently  interfere  with  legitimate  governmental  acquisition 
of  copyright.  We  understand  tliat  otlier  U.S.  Government  agencies  are  drafting 
language  to  meet  the  purpose  of  Section  104(c)  in  a  technically  different  manner. 
We  have  not  reviewed  these  proposals  and  are  unable  to  express  our  opinion 
as  to  their  merits.  However,  we  support  the  aim  of  appropriately  drafted  legisla- 
tion that  would  deny  effect  in  United  States  courts  of  a  foreign  nation's  laws  or 
practices  desigiied  to  deprive  the  authors  of  that  country  of  the  rights  to  publish 
and  protect  their  literary  and  artistic  works  in  the  United  States. 

Section  302.  Duration  of  Copyright:  TTorfcs  Created  on  or  after  January  1,  1915. 
Section  302  concerns  the  duration  of  copyright  (i.e.  term  of  protection)  and  is 
one  of  the  most  important  provisions,  if  not  the  most  important  in  the  revision 
bill.  Basically,  Section  302(a)  provides  for  a  copyright  term  consisting  of  the 
life  of  the  author  and  50  years  after  his  death.  The  importance  of  the  provision 
is  borne  out  l)y  the  fact  that  the  Register  of  Copyrights  regards  a  "life-plus-.iiO 
term"  as  the  "foundation  of  the  entire  bill".  Such  a  term  of  protection  would  be 
more  consistent  with  the  practice  of  a  very  large  ma.iority  of  other  countries 
that  are  members  of  the  international  copyright  community.  This  provision  would 
also  remove  a  major  obstacle  to  the  possible  adherence  to  the  Berne  Convention 
for  the  Protection  of  Literary  and  Artistic  Works  by  the  T'nited  States,  Article 
7  of  which  requires  states  party  to  the  convention  to  provide  such  a  term  of 
protection.  Such  a  change  would  facilitate  and  simplify  international  copy- 
right protection  for  U.S.  nationals.  Therefore,  the  Department  of  State  strongly 
supports  the  duration  of  copyright  protection  as  proposed  in  Section  302. 

Section   601.    Manufacture,  Importation   and  Puilic  Distriltution  of   Certain 

Copies. 

Section  601  relates  to  the  so-called  "manufacturing  clau.se"  which  is  designed 
essentially  to  protect  the  U.S.  printing  industry.  ITnder  Section  601  the  importa- 
tion into  or  the  distribution  within  the  U.S.  of  English  language  copies  of  cer- 
tain works  whose  authors  are  U.S.  nationals  (living  in  the  United  States)  or 
domiciliaries  would  be  prohibited  unless  the  copies  are  produced  in,  or  made 
from  type  set  in,  or  plates  made  in,  the  United  States  or  Canada.  Also  com- 
pliance with  the  manufacturing  requirements  no  longer  would  constitute  a 
condition  of  copyright  protection ;  the  effects  of  noncompliance  would  be  limited 
to  rights  with  respect  to  reproduction  and  distribution  of  copies.  Section  601(d) 
provides  a  complete  defense  in  any  civil  action  or  criminal  proceeding  for  in- 
fringement of  the  exclusive  rights  of  reproduction  or  distribution  of  copies  where^ 


174 

Tinder  certain  circumstances,  the  defendant  proves  Tiolatiou  of  the  manufactur- 
ing requirements. 

The  Department  notes  with  satisfaction  that,  on  the  whole,  there  has  been 
a  liberalization  of  the  manufacturing  clause  as  it  exists  today.  For  example,  a 
violation  of  the  manufacturing  clause  as  regards  a  book  would  not  affect  the  right 
of  the  copyright  proprietor  to  authorize  a  motion  picture  version  or  other  use 
of  the  book.  It  would  merely  affect  enforcement  of  copyright  with  respect  to 
publication  as  a  book.  Further,  the  number  of  copies  manufactured  abroad  that 
may  be  imported  has  been  increased  from  1,500  to  2,000. 

Despite  this  liberalization,  Section  601  would  continue  the  protectionist  fea- 
tures of  the  manufacturing  clause.  This  kind  of  protection  is  fundamentally 
inconsistent  with  basic  U.S.  policy  in  international  trade.  For  several  decades 
we  have  pursued  a  policy  of  reducing  tariffs  and  other  trade  barriers  in  the 
interest  of  promoting  an  open  international  economic  system.  We  believe  that 
the  broad  trading  interests  of  the  U.S.  and  its  people  continue  to  be  best  served 
by  a  general  reduction  of  trade  barriers  including  non-tariff  barriers.  This  is 
the  policy  we  are  carrying  forward  in  the  current  multilateral  trade  negotiations 
being  undertaken  in  Geneva  under  the  authority  of  the  recently  enacted  Trade 
Act.  During  this  round  of  negotiations  attention  will  be  focused  particularly 
on  non-tariff  barriers,  and  one  of  our  major  negotiating  objectives  will  be  to 
reduce  or  eliminate  non-tariff  barriers  of  other  countries  which  restrict  U.S. 
trade.  We  believe  that  it  is  important  to  note  this  inconsistency  in  consider- 
ing the  continuation  of  the  manufacturing  clause. 

Furthermore,  the  exception  for  Canada  introduced  by  this  bill  into  the  manu- 
facturing clause  would  violate  our  obligations  under  the  GATT  and  various 
bilateral  treaties.  The  United  Kingdom  has  protested  and  we  expect  that  other 
foreign  countries  which  are  being  discriminated  against  by  this  measure  will 
protest,  thereby  introducing  another  element  of  discord  and  potential  retaliation 
into  our  relations  with  those  coimtries.  Specifically,  the  exception  would  violate 
our  obligation  under  Article  XIII  of  the  GATT  which  requires  non-discrimina- 
tory application  of  quantitative  restrictions.  Although  the  U.S.  could  seek  a 
special  waiver  from  the  GATT  Contracting  Parties  to  permit  this  exception, 
this  procedure  would  be  particularly  undesirable  at  this  time  in  view  of  the 
opening  of  the  new  round  of  multilateral  trade  negotiations  at  Geneva.  The 
exception  would  also  violate  commitments  in  various  Friendship,  Commerce  and 
Navigation  treaties,  which  we  have  concluded  with  most  of  the  other  industrial- 
ized nations. 

These  treaties  normally  impose  obligations  on  the  U.S.  before  it  introduces 
non-tariff  barriers  on  important  products  of  the  other  country,  and  forbids  the 
prohibition  of  the  other  country's  products  unless  the  product  of  third  countries 
are  similarly  prohibited. 

In  conclusion,  the  Department  of  State  believes  that  the  updating  of  the  U.S. 
copyright  law  is  most  desirable  and  supports  the  enactment  of  H.R.  2223.  A 
modernization  of  the  copyright  law  to  take  into  account  the  important  technologi- 
cal advances  in  the  copyright  field  is  in  the  interest  of  all  members  of  the  copy- 
right commimity.  It  is  also  important  in  bringing  the  United  States  in  step  in 
copyright  with  the  other  principal  countries  of  the  world. 

The  Oflice  of  Management  and  Budget  advises  that  there  is  no  objection  to 
the  submission  of  this  report. 
Sincerely  yours, 

Robert  J.  McClosket, 
Assistant  Secretary  for 
Congressional   Relations. 

The  Librarian  of  Congress. 
Washington,  D.C.,  August  26,  1975. 
Hon.  Peter  W.  Rodino, 
Chairman,  Committee  on  the  Judiciary, 
U.S.  House  of  Representatives,  Washington,  B.C. 

Dear  Mr.  Rodino:  This  refers  to  your  reque.st  for  llie  views  of  the  Library  of 
Congress  and  the  Copyright  Office  on  H.R.  2223,  a  bill  for  the  general  revision 
of  the  Copyright  Code,  title  17  U.S.C,  for  the  establishment  of  protection  of 
ornamental  designs  of  useful  articles  in  the  form  of  the  Design  Protection  Act, 
and  for  other  purposes. 

The  current  bill  is  the  latest  in  a  series  of  bills  pending  in  Congress  since  1905 
to  effect  a  general  revision  of  the  Copyright  Code.  H.R.  2223,  except  for  technical 


175 

amendments,  is  tlie  same  as  the  bill  that  passed  the  Senate  in  the  93rd  Congress, 
S  1361  93rd  Congress,  2d  Session  (1974),  by  a  vote  of  70  to  1.  The  Kastenmeier 
bill  (HR  2223)  is  also  substantially  identical,  except  for  Chapter  1,  to  the  bill 
passed  by  the  House  of  Representatives  in  1967,  H.R.  2512,  90th  Congress,  1st 

Session.  ,  x  ^    ^.-^  j         ^r       -    m— 

The  Register  of  Copyrights,  Barbara  Ringer,  and  I  testified  on  May  <,  19(o 
before  the  House  Subcommittee  on  Courts.  Civil  Liberties,  and  the  Administration 
of  Justice  and  urged  enactment  of  the  revision  bill  in  this  Congress.  We  reiterate 
the  strong  support  of  the  Library  of  Congress  and  the  Copyright  Office  for  this 
bill.  As  Ms.  Ringer  remarked  in  her  testimony  before  the  Subcommittee:  "A 
Twentieth-Century  copyright  statute  is  long  overdue  in  the  United  States,  and 
the  present  need  for  a  revised  law  that  will  anticipate  the  Twenty-First  Century 
is  so  obvious  as  to  be  undeniable." 

The  Register  of  Copyrights  has  submitted  to  the  House  Subcommittee  chaired 
by  Mr.  Kastenmeier  a  series  of  brief,  objective  analyses  of  the  key  provisions  of 
the  bill.  She  is  also  preparing  a  supplemental  report  on  the  revision  bill  and  plans 
to  submit  this  to  the  Committee  on  the  Judiciary  in  early  fall.  I  shall  therefore 
confine  my  comments  to  general  support  of  the  copyright  revision  bill,  reference 
to  the  recent  changes  by  the  Senate  Subcommittee  on  Patents,  Trademarks,  and 
Copyrights,  specific  mention  of  a  few  recommended  changes  in  title  I,  and  general 
support  for  title  II. 

1.    GENERAL    COMMENTS    ON    TITLE    I 

The  current  copyright  revision  effort  began  twenty  years  ago.  The  basic  bill 
has  been  under  legislative  consideration  for  more  than  ten  years.  However,  active 
consideration  of  the  bill  has  peaked  at  different  times  in  each  house,  and  the 
House  of  Representatives  has  not  considered  the  bill  thoroughly  since  LI.R.  2.512 
passed  the  House  in  1967.  The  exceedingly  careful  preparation  of  the  study  and 
drafting  phases  of  the  revision  program  is  reflected  in  the  strength  of  the  "basic 
bill,"  which  has  remained  intact  since  the  House  last  considered  it.  For  example, 
the  following  fundamental  provisions  of  the  bill  have  stood  the  test  of  time :  a 
single  national  system  for  copyright  protection  under  the  Federal  copyright 
statute;  provisions  governing  the  term  of  new  works  and  subsisting  copyrights; 
limitations  on  the  assignment  of  an  author's  right ;  copyright  formalities,  includ- 
ing notice,  deposit,  and  registration :  copyright  infringement  provisions ;  and 
housekeeping  provisions  affecting  the  Copyright  Office  and  the  registration 
system. 

Enactment  has  been  delayed  because  of  a  few  issues  concerning  the  scope  of  the 
exclusive  rights  granted  under  the  bill  and  limitations  to  those  rights.  For  many 
years,  the  key  issue  was  the  limitations  on  the  exclusive  rights  affecting  secondary 
transmissions,  principally  cable  television.  Other  issues,  such  as  library  photo- 
copying, computer  uses  of  copyrighted  works,  public  broadcasting,  and  educa- 
tional uses  of  copyrighted  works  in  general  have  waxed  and  waned. 

Now  that  cable  television  litigation  seems  to  have  run  its  course,  this  issue  is 
ripe  for  a  legislative  solution.  The  Williams  &  Wilkins  v.  United  States,  487  F.2d 
1315  (Ct.  of  Claims  1973  aff'd  by  equally  divided  court,  420  U.S.  376  (1975) )  litiga- 
tion over  library  photocopying  has  ended  inconclusively.  In  both  instances,  the 
courts  have  urged  legislative  solutions  for  the  complex  problems  caused  by  the 
impact  of  new  technology  on  an  antiquated  copyright  law. 

The  Libraiy  of  Congress  and  the  Copyright  Office  are  ready  to  provide  what- 
ever assistance  the  Committees  or  Members  of  Congress  wish  in  presenting  bal- 
anced explanations  of  the  provisions  of  the  bill  or  of  additional  proposals.  With- 
out endorsing  particular  solutions,  we  do  endorse  wholeheartedly  the  general 
concept  of  reasoned  discourse  and  debate  on  the  issues  and  good  faith  attempts 
to  reach  compromise  positions,  followed  by  a  Congressional  decision  on  the 
particular  proposals.  We  genuinely  believe  that  these  problems  are  capable  of 
solution.  We  also  believe  that  an  effective  copyright  system  is  not  likely  to  survive 
further  delay  in  enacting  a  revision  of  the  1909  law. 

2.    SENATE    ACTION    ON    S.     22 

The  Senate  Subcommittee  on  Patents,  Trademarks  and  Copyrights  reported 
a  companion  bill.  S.  22,  to  the  Senate  Judiciary  Committee  on  June  13.  1975.  We 
should  like  to  bring  to  your  attention  the  substantive  changes  in  the  Senate  bill. 

Royalty  Tri'bvnal. — ^The  Senate  Subcommittee  has  restored  the  provision  in 
sections  801  and  802  for  periodic  review  of  the  royalty  rate  for  jukebox  uses  of 
copyrighted  works. 


176 

Federal  pre-emption. — The  Subcommittee  has  accepted  an  amendment  to  sec- 
tion 301  specifically  reserving  state  law  protection  for  misappropriation  of  copy- 
riirht  subject  matter  provided  the  relief  is  not  equivalent  to  any  of  the  exclusive 
rights  within  the  general  scope  of  copyright. 

ProhiMtion  against  involuntary  transfers. — The  Subcommittee  has  replaced 
the  provision  prohibiting  expropriation  of  copyrighted  works  in  section  104(c) 
with  a  new  provision  in  section  201(e)  prohibiting  involuntary  transfere. 

HingJe  registration  for  several  contributions  to  periodicals. — Two  new  sub- 
paragraphs have  been  added  to  section  408(c)  authorizing  a  single  registration 
for  contributions  to  a  periodical  by  the  same  individual  author  under  certain 
conditions. 

Fee  schedule. — A  new  schedule  of  fees  has  been  added  to  section  708. 

Voluntary  licenses  for  use  of  copyrighted  works  by  the  blind  and  physically 
handicapped. — A  new  section  710  has  been  added  directing  the  Register  of  Copy- 
rights to  establish  by  regulation  standardized  procedures  under  which  the  copy- 
right owner  grants  voluntary  licenses  to  the  Library  of  Congress  for  the  repro- 
duction of  certain  nondramatic  literary  works  for  use  by  the  blind  and  physically 
handicapped. 

Noncommercial  broadcasts  to  handicapped  audience. — A  new  clause  (8)  has 
been  added  to  section  110  exempting  the  performance  of  a  literary  work  on  non- 
commercial radio  and  television  stations  to  a  "print  or  aural  handicapped 
audience." 

Derivative  work  right  for  sound  recordings. — Section  114  has  been  amended  to 
include  among  the  rights  granted  to  the  copyright  owner  of  a  sound  recording  the 
right  to  prepare  derivative  works. 

Criminal  penalties. — Several  amendments  proposed  by  the  Justice  Department 
were  adopted.  The  punishment  for  criminal  infringement  of  a  sound  recording  or 
motion  picture  copyright  has  been  increased  from  one  year  to  3  years  for  tlie 
first  offense,  and  from  two  years  to  seven  years  for  subsequent  offenses,  section 
506(a).  A  new  subsection  has  been  added  to  section  506  adding  forfeiture  and 
destruction  of  copies  as  possible  penalties  for  conviction  of  copyright  infringe- 
ment, -R-ithin  the  discretion  of  the  court.  A  new  section  50f»  has  been  added  pro- 
viding for  possible  seizure  and  forfeiture  by  the  United  States  Government  of 
infringing  copies  or  phonorecords,  including  articles  or  devices  used  to  carry  out 
the  criminal  infringement. 

Title  II. — Tile  Subcommittee  adopted  a  series  of  changes  recommended  by  the 
Department  of  Commerce  with  respect  to  sections  203-206,  209,  211-213,  227,  and 
229  of  the  Design  Protection  Act. 

3.  RECOMMENDED  CHANGES  IN  TITLE  I 

Several  of  the  amendments  adopted  by  the  Senate  Subcommittee  on  Patents, 
Trademarks,  and  Copyrights  were  either  recommended  by  the  Library  of  Congress 
and  the  Copyright  Office,  or  have  been  endorsed  by  us.  We  specifically  urge  adop- 
tion of  the  following  amendments. 

Prohibition  against  involuntary  transfers. — We  recommend  the  language 
adopted  by  the  Senate  Subcommittee  in  section  201(e)  in  lieu  of  the  present 
section  104(c)  of  H.R.  2223.  The  new  language  is  intended  to  establish  on  a 
statutory  basis  the  principle  that  an  involuntary  transfer  of  the  copyright  in- 
terest will  not  be  recognized  under  our  law.  Of  course,  traditional  legal  actions 
such  as  bankruptcy  proceedings  and  mortgage  foreclosures  are  not  within  the 
scope  of  the  recommended  language  since  the  author  has,  in  one  way  or  another, 
consented  to  these  legal  processes  by  his  actions.  The  ])rovision  is  no  longer  di- 
rected against  foreigii  governments  since  the  same  princii)le  applies  to  the  United 
States  Government.  While  our  courts  have  not  addressed  the  precise  issue  of  in- 
voluntary transfer,  we  believe  the  principle  of  the  proposed  section  201(e)  would 
be  followed  by  the  courts  in  construing  the  present  law. 

Federal  pre-etnption. — We  endorse  the  change  in  section  301  adopted  by  the 
Senate  Subcommittee  which  is  intended  to  clarify  that  misiippropriation  relief 
may  be  provided  under  state  law  as  long  as  the  protection  conferred  is  not  equiv- 
alent to  the  exclusive  rights  granted  by  the  copyright  law. 

Single  registration  for  several  contributions  to  periodicals. — The  basic  prin- 
ciple of  this  provision  was  originally  siiggested  by  Irwin  Karp.  Counsel  for  rhe 
Authors'  League.  The  Library  of  Congress  and  the  Copyright  OflBce  recommended 
it  to  the  Senate  Subcommittee,  and  the  provision  also  appears  in  H.R.  7140  (by 
Mr.  Kastenmeier),  which  would  amend  the  existing  title  17  U.S.C  apart  from  the 


177 

effort  to  effect  a  general  revision  of  the  copyriglit  law.  Separate  original  and  re- 
newal term  registration  is  a  substantial  financial  burden  on  individual  authors 
and  artists  who  contribute  small  or  short  works  to  a  variety  of  daily  newspapers 
and  other  periodicals.  The  pi-oposed  amendment  to  section  408 (c)  would  specif- 
ically authorize  the  Register,  without  prejudice  to  her  general  authority,  to 
establish  regulations  permitting  grouping  of  contributions  by  the  same  individual 
author  for  registration  purposes. 

Fee  sehedule — section  708. — The  new  fee  schedule  adopted  by  the  Senate  Sub- 
committee also  appears  in  H.R.  7149.  introduced  by  Mr.  Robert  W.  Kastenmeier 
on  May  20,  1975  at  tlie  request  of  the  Library  of  Congress  and  the  Coiiyright 
OflBce.  'We  found  it  necessary  to  propose  general  increases  in  the  fee  schedule  iu 
view  of  the  low  ratio  of  recovery  of  the  costs  of  the  copyright  registration  system 
by  cash  receipts  for  services  performed.  We  strongly  urge  inclusion  of  the  new 
fee  schedule  i\i  H.R.  2223.  We  also  take  this  opportunity  to  urge  separate  enact- 
ment of  H.R.  7149  without  awaiting  general  revision  of  the  copyright  law.  The 
revision  bill  cannot  become  effective  immediately  upon  enactment  because  of  the 
administrative  preparation  required  to  implement  its  provisions.  Hence,  we  favor 
enactment  of  H.R.  7149  as  soon  as  possible. 

Voluntary  licenses  for  use  of  eoiryriglited  works  hy  the  hlind  and  physically 
handicapmd — new  section  710. — This  provision  also  originated  with  the  Library 
of  Congress  and  the  Copyright  Otiice,  and  we  urge  its  addition  to  the  revision 
bill.  It  has  tlie  support  of  the  American  Association  of  Publishers. 

Universal  Copyright  Convention. — We  propose  a  technical  amendment  to  sec- 
tion 104(b)  (2)  in  view  of  the  1971  revision  of  the  Universal  Copyright  Conven- 
tion. Line  25  of  page  7  should  read  "1952  or  1971  Universal  Copyright  Convention  ; 
or". 

4.    GENERAL   COMMENTS   ON   TITLE   II 

Design  legislation  has  been  pending  before  Congress  even  longer  than  the 
current  efforts  at  omnibus  copyright  revision.  Title  II  of  H.R.  2223,  the  Design 
Protection  Act,  represents  the  current  version  of  design  legislation.  The  pro- 
posal has  been  refined  through  years  of  study,  debate,  consideration,  and  amend- 
ment. The  Library  of  Congress  and  the  Copyright  Office  have  supported  this 
le.idslation  in  the  past,  and  we  reiterate  our  strong  endorsement  of  the  present 
bill,  esi)ecially  since  the  present  version  appears  to  resolve  many  issues  that  de- 
layed enactment  of  separate  design  legislation. 

The  Design  Protection  Act  would  create  a  new  form  of  protection  for  designs 
based' upon  modified  copyright  principles  and  would  bridge  the  gap  between 
existing  design  patent  and  copyright  protection  for  ornamental  designs  of  useful 
articles.  This  new  form  of  protection  is  needed  to  correct  deficiencies  in  tlie 
protection  accorded  by  existing  law.  For  example,  although  the  Copyright  Office 
registers  certain  ornamental  designs  of  useful  articles  which  qualify  as  "works 
ofart,"  it  must  refuse  registration  for  numerous  equally  actractive  or  meritorious 
designs,  because  they  do  not  display  separate  work  of  art  authorship  apart  from 
the  utilitarian  aspects  of  the  article.  On  the  other  hand,  design  patents  are  .iudged 
by  the  high  patent  standards  of  novelty  and  non-obviousness.  The  patent  is 
difllcult  and  expensive  to  obtain,  and  most  designs  do  not  survive  a  court  t^st. 

The  Design  Protection  Act  avoids  these  pitfalls.  It  is  specifically  tailored  to 
meet  the  demonstrated  need  for  protection  of  ornamental  designs  of  useful 
articles  with  due  regard  for  the  interests  of  consumers  and  their  reiiresentatives. 
the  product  retailers.  The  bill  adopts  the  copyright  standard  of  originality,  but 
the  term  of  protection  is  short  in  consideration  of  the  public  interest  in  free  com- 
petition among  product  designs. 

We  accept  in  general  the  amendments  adopted  by  the  Senate  Subcommittee 
with  respect  to  title  IT.  However,  we  have  some  hesitation  about  the  amendment 
to  section  203.  adding  the  requirement  that  protection  may  be  accorded  to  a- 
revision,  adaptation,  or  rearrangement  of  design  subject  matter  only  if  tlie 
changes  are  substantial.  We  agree  with  the  amendment  provided  the  substantiality 
of  the  revision  is  judged  by  traditional  copyright  standards  of  originality.  We 
would  not  support  the  change  if  there  is  any  possibility  that  it  would  be  con- 
strued to  establish  a  stricter  standard  of  originality  than  that  establislied  in 
section.  201  (b)  (4).  If  the  House  .Tudiciary  Ccmimittee  adopts  this  language,  we 
recommend  a  clarification  in  the  report  that  the  amendment  in  no  way  derogates 
from  the  section  201  (b)  (4)  standard  of  originality. 

Finally,  we  point  out  that  the  bill  presently  doe?  not  indicate  which  agency  will 
administer  the  Design  Protection  Act.  Under  section  230,  the  Administrator  will 


178 

be  desigTiated  by  the  President.  In  order  to  assure  administrative  preparation 
for  implementation  of  the  Design  Protection  Act,  the  Congress  may  wish  to 
designate  the  Administrator  directly  in  the  bill.  The  Copyright  Office  would  be 
willing  to  assume  this  responsibility,  as  the  Congress  or,  under  the  present  bill, 
the  President  directs. 
Sincerely, 

John  G.  Lorenz. 
Acting  Librarian  of  Congress. 


National  Aeronautics  and  Space  Administration, 

Washington,  D.C.,  September  o,  1973. 
Hon.  Peter  W.  Rodino,  Jr., 
Chairman,  Committee  on  the  Judiciary, 
House  of  Representatives,  Washington,  D.C. 

Dear  Mr.  Chairman  :  This  is  in  further  reply  to  your  request  for  the  views  of 
the  National  Aeronautics  and  Space  Administration  on  the  bill  H.R.  2223,  '"For 
the  general  revision  of  the  Copyright  Law,  title  17  of  the  United  States  Code,  and 
for  other  purposes." 

Title  I  of  the  bill  provides  for  a  general  revision  of  the  United  States  Copyright 
Law.  title  17  of  the  United  States  Code.  Title  II  establishes  a  new  type  of  protec- 
tion for  original  ornamental  designs  of  useful  articles.  Set  forth  below  are  com- 
ments on  specific  provisions  of  the  bill  which  would  have  a  direct  impact  on 
NASA's  activities  and  liability. 

TITLE    I 

Government  Works 

The  proposed  legislation  obviates  some  of  the  ambiguities  present  in  the  current 
coi)yright  law  with  respect  to  Govei-nment  works.  Sec.  105  of  the  bill  prohibits 
copyright  in  any  "work  of  the  United  States  Government,"  which  is  defined  in 
Sec.  101  as  "a  work  prepared  by  an  officer  or  employee  of  the  United  States  Gov- 
ernment as  part  of  his  official  duties."  The  present  law  prohibits  copyright  in  a 
"publication  of  the  United  States  Government"  (Sec.  8),  but  does  not  define  the 
latter  term.  The  proposed  legislation  adequately  reflects  case  law  and  customary 
practice  within  the  executive  branch,  which  have  established  that  works  prepared 
by  Government  officers  or  employees  as  part  of  their  official  duties  are  "Govern- 
ment publications"  within  the  copyright  prohibition. 

Some  previous  copyright  revision  Inlls  have  defined  a  Government  work  as  one 
prepared  by  an  officer  or  employee  "within  the  scope  of  his  official  duties  or  em- 
ployment." The  latter  was  considered  ob.iectionable  because  it  was  ambiguous  and 
subject  to  a  much  broader  interpretation.  For  example,  it  could  be  construed  as 
prohibiting  copyright  even  where  an  officer  or  employee  voluntarily  wrote  a  book 
on  his  own  time  which  was  somehow  related  to  his  employment. 

Sec.  105  also  clarifies  the  right  of  the  Government  to  receive  and  hold  copy- 
rights transferred  to  it  by  assignment,  bequest,  or  otherwise,  thus  obviating  an- 
other uncertainty  in  the  current  law. 

Since  H.R.  2223  abolishes  common  law  copyright  protection  and  extends  statu- 
tory copyright  protection  to  published  and  unpublished  works  ( Sec.  104  and  Sec. 
301),  in  our  view  the  copyright  prohibition  of  Sec.  105  would  apply  to  both  pub- 
lished and  unpublished  Government  works  as  this  term  is  defined  in  Sec.  101. 

NASA  is  still  of  the  view,  expressed  in  comments  submitted  to  the  Committee 
on  previou,sly  proposed  legislation  (e.g.,  H.R.  43^7,  SOth  Congress.  1st  Session, 
1965),  that  copyright  protection  should  be  available  for  Government  works  in 
exceptional  circumstances.  This  would  give  NASA  the  opportunity  to  enter  into 
competitive  negotiations  with  private  publishing  firms  in  exceptional  cases  so  that 
selec-ted  NASA  publications  could  receive  the  widest  possible  distribution  as  re- 
quired by  Section  203(a)  of  the  National  Aeronautics  and  Space  Act  of  1958.  The 
negotiating  position  of  the  Government  depends  on  its  ability  to  provide  copyright 
protection  for  a  period  of  time  to  the  publisher  in  exchange  for  distribution  and 
related  services.  If  necessary,  the  rights  of  the  Government  to  copyright  in  such 
exceptional  eases  can  be  limited  to  a  shorter  period  of  time ;  for  example,  5  years 
(rather  than  the  full  term),  which  may  be  sufficient  time  for  the  publisher  to 
regain  his  initial  publishing  costs.  Accordingly,  it  is  recommended  that  the  fol- 
lowing subsection  be  inserted  in  Sec.  105  : 

"In  exceptional  cases,  copyright  may  be  secured  in  a  published  work  of  the 
United  States  Government  where,  because  of  the  special  nature  of  the  work  or  the 
circumstances  of  its  preparation,  it  is  determined  that  copyright  protection  would 
result  in  more  effective  dissemination  of  the  work  or  for  other  reasons  would  be 
in  the  public  interest.  The  head  of  the  Government  agency  for  which  the  work  was 


179 

prepared  shall  make  the  determination  in  each  case  in  accordance  with  regula- 
tions established  by  an  administrative  officer  designated  by  the  President,  and 
shall  publish  a  statement  of  the  basis  for  its  determination  in  each  case  in  the 
manner  specified  by  such  regulations." 

It  is  strongly  urged  that  Sec.  105  be  amended  to  specify  that  the  copyright 
prohibition  for  Government  works  apply  only  to  domestic  copyright  protection. 
This  could  be  done  by  inserting  the  phrase  "within  the  United  States''  after 
the  word  "available"  in  line  1  of  Sec.  105.  It  is  a  commonly  held  opinion,  al- 
though not  established  by  case  law,  that  the  prohibition  .against  obtaining  copy- 
right hx  the  Government  applies  to  domestic  copyrights  only.  Thus,  in  this 
view,  the  Government  may  copyright  abroad  when  that  serves  its  best  interests. 
While  we  feel  that  many  foreign  signatories  to  the  Universal  Copyright  Con- 
vention would  honor  the  copyright  of  the  U.S.  Government  in  their  respective 
countries  under  the  Convention,  some  nations  might  take  the  position  that  a 
U.S.  Government  work  cannot  receive  copyright  protection  anywhere. 

Thf  basic  rationale  for  prohibiting  copyi'ight  protection  for  U.S.  Government 
works  is  that  American  taxpayers  have  paid  for  these  works  through  tax  assess- 
ments and  should  have  access  to  them  free  of  copyright  restrictions.  This  ra- 
tionale does  not  require  a  giveaway  of  U.S.  Government  works  to  foreign 
nationals  and  foreign  governments.  Most  foreign  countries  provide  domestic  copy- 
right protection  for  publications  of  their  governments,  and  publications  of 
foreign  governments  are  accepted  for  copyright  registration  in  the  United  States, 
except  for  statutes,  court  opinions,  and  similar  official  dociiments  which  are  con- 
sidered inherently  uncopyrightable.  Among  the  benefits  which  would  accrue 
from  asserting  copyright  abroad  in  selected  U.S.  Government  works  are:  (a) 
improvements  of  our  negotiating  position  with  certain  countries;  (b)  royalties 
could  be  collected,  thereby  .aiding  our  balance  of  payments;  (c)  protection 
of  the  integrity  of  U.S.  Government  works;  and  (d)  greater  dissemination  if 
American  publishers  were  licensed  to  distribute  U.S.  Government  works  through 
ertablis^hed  distribution  outlets  abroad. 

It  is  also  recommended  that  a  subsection  similar  to  that  appearing  in  the 
current  law,  17  U.S.C.  8,  be  inserted  in  Sec.  105  of  H.R.  2223.  that  is  : 

"Publication  or  other  use  by  the  United  States  Government  of  any  material 
ill  which  copyright  is  existing  does  not  impair  the  copyright  or  authorize  any 
further  use  or  appropriation  of  the  material  without  the  consent  of  the  copy- 
right owner." 

It  is  believed  desirable  to  retain  such  a  provision  in  the  statute  to  provide 
assurances  to  authors  and  to  preclude  the  argument  th,at  deletion  of  this  pro- 
vision from  the  present  statute  implies  that  such  protection  is  no  longer  available. 

Pre-emption  With  Respect  to  Other  Laws 

A  key  provision  of  Title  I  of  H.R.  2223  is  Sec.  301,  which  would  establish  a 
single  system  of  statutory  protection  for  virtually  all  copyrightable  works 
whether  published  or  unpublished.  Under  Sec.  301,  a  work  would  obtain  statu- 
t^fry  protection  as  soon  as  it  is  "created"  or.  as  the  term  is  defined  in  Sec.  101, 
when  ir  is  "fixed  in  a  copy  or  phonorecord  for  the  first  time." 

Sec.  301(b)  provides  that  nothing  in  the  title  annuls  or  limits  any  rights  or 
remedies  under  the  common  law  or  statutes  of  any  state  that  are  not  equivalent 
to  any  of  the  exclusive  rights  within  the  general  scope  of  copyright,  such  as 
breaches  of  contract.  No  mention  is  made  of  Federal  statiites  such  as  the  Tucker 
Act,  28  U.S.C.  1491,  which  permits  suit  against  the  Government  for  breach  of  an 
express  or  implied  contract.  Undoubtedly,  it  was  not  intended  that  such  a 
Federal  statute  be  preempted  by  the  copyright  revision.  It  is  recommended, 
thei-pfore,  for  clarification  purposes,  that  Sec.  301(b)  be  amended  by  inserting 
the  phrase  "under  Federal  statutes  or"  after  the  woi'd  "remedies'"  on  line  1. 

A  similar  omission  occurs  in  Sec.  117  and  it  is  suggested  that  the  phrase 
"title  17"  be  replaced  by  "this  or  other  title  of  the  United  States  Code." 

Sec.  502'^ a)  provides  that  any  court  having  .iurisdiction  of  a  civil  action 
arising  under  the  title  may,  su'bject  to  the  prorhions  of  section  1498 (b)  of  title 
28.  grant  in.iunctions  to  prevent  or  restrain  infringement  (emphasis  added).  It 
is  recommended  that  the  phrase  "subject  to  the  provisions  of"  be  replaced  by 
"except  in  actions  against  the  Government  under"  to  clailfy  the  exclusive 
jnri.«diction  of  the  Court  of  Claims  under  28  U.S.C.  1498(b) . 

Unpnhlished  Works 

28  U.S.C.  1498 (b)  provides  for  a  cause  of  action  against  the  Government  for 
infringement  of  "copyright  in  any  work  protected  under  the  copyright  laws  of 
the  United  States."  This  waiver  of  sovereign  immunity  has  been  construed  not 


180 

to  embrace  common  law  copyright,  i.e.,  iiupnhlished  works.  See  e.g..  Porter  et  al. 
V.  United  States,  473  F  2d  1329,  117  USPQ  238  (CA  5  1973).  Since  H.R.  2223 
protects  unpuhli.shed  as  well  as  published  works,  the  Governments  liability  will 
be  extended.  It  is  urged  that  28  U.S.C.  1498(h)  be  amended  so  that  it  continues 
to  restrict  the  Government's  liability  for  copyright  infringement  to  "published" 
works  only.  Government  agencies  receive  a  voluminous  amount  of  material  from 
private  sources  which  does  not  bear  a  copyriglit  notice  and  whicli  is  reproduced, 
distributed,  etc.  in  its  day-to-day  business  activities,  for  example,  under  the 
Freedom  of  Information  Act.  It  would  be  extremely  difficult,  if  not  impossible, 
to  ascertain  whether  the  material  sulmiitted  has  been  published  with  no  intent 
to  claim  copyriglit,  or  whether  it  is  unpublished  and  the  owner  intends  to  claim 
copyright  protection. 

Tlie  effect  of  compliance  with  the  Freedom  of  Information  Act  (FOIA)  on 
the  Government's  lialiility  for  copyright  infringement  also  needs  clariticatiou. 
If  a  document  requested  under  the  FOIA  bears  a  copyright  notice,  the  requester 
can  be  so  advised  and  will  usually  be  able  to  secure  a  copy  elsewhere.  Where 
the  document  requested  contains  no  copyright  notice,  it  may  be  an  unpublished 
work  sul)ject  to  protection  under  the  i)roposed  copyright  revision  ;  and  providing 
access  or  a  copy  may  very  well  frustrate  the  copyright  owner's  de.-;ires  and 
subject  the  Government  to  liability.  We  are  concerned  whether  the  furnishing 
of  a  copy  of  a  document  by  the  Government  under  the  FOIA  will  be  considered 
excusable,  or  a  form  of  fair  use.  Of  course,  if  a  document  is  released  under 
FOIA,  the  Government  may  not  itself  restrict  its  use  by  otiiers.  For  clarification 
purposes,  it  is  recommended  that  language  l>e  inserted  in  H.R.  2223  explaining 
the  fair  use  doctrine's  applicability  to  unpublished  works  and  the  Government's 
release  of  documents  under  the  FOIA. 

Innocent  Infringers 

Under  Sec.  405(b)  an  innocent  infringer  who  acts  in  reliance  upon  an 
authorized  copy  or  phonorecord  from  which  the  copyright  notice  has  been  omitted, 
and  who  proves  that  he  was  mi^;led  by  the  omission,  is  shielded  from  liability 
for  actual  or  statutory  damages  with  respect  to  any  infringing  acts  committed 
before  receiving  actual  notice  of  registration.  No  protection  is  spelled  out  in  the 
proposed  legislation  for  an  innocent  infringer  wlio  relies  on  an  unaiithrirized 
copy  or  plionorecord  of  a  published  work  from  which  tlie  copyriglit  notice  has 
been  omitted ;  or  for  an  innocent  infringer  of  an  unpublished  work,  i.e.,  one 
who  relies  on  a  copy  or  phonorecord  which  has  been  published  without  authority 
of  tlie  owner. 

Publications  Incorporating  Works  in  the  Puhlic  Domain 

Sec.  403  of  U.K.  2223  provides  that  when  a  work  is  published  in  copies  or 
phcnorecords  consisting  preponderantly  of  one  or  more  Government  works,  the 
notice  of  copyright  shall  also  include  a  statement  identifying  the  portions  embody- 
ing work  protected  under  Title  17.  It  is  NASA's  opinion  that  Sec.  403  is  too 
limited  and  that  it  would  be  in  tlie  public  interest  to  recpiire  such  a  statement 
also  where  a  work  consists  preponderantly  of  any  material  that  is  in  the  public 
domain.  We  recommend  that  Sec.  403  be  amended  by  adding  the  phrase  "or  works 
in  the  public  domain"  after  the  word  '"works"  in  the  heading  and  before  the 
words  "the  notice"  in  line  3  of  the  body  of  the  section. 

TITLE  II 

Our  remaining  comments  are  directed  to  Title  II  of  II.R.  2223.  It  is  assumed: 
that  the  word  "title"  in  the  various  sections  refers  only  to  Title  II  dealing  with 
ornamental  designs.  It  is  not  apparent  where  Title  TI  will  appear  in  the  United 
States  Code.  If  Title  II  is  pl.iced  under  Title  17.  difficulties  in  construction  may 
ensue.  For  example,  the  definitions  set  forth  in  Title  I  of  II.R.  2223  dealing  with 
copyrights  might  be  construed  as  being  applicable  to  Title  II  also. 

It  is  suggested  that  paragraph  (b)  of  28  U.S.C.  1-J98  be  amended  to  include 
registered  designs  rather  thon  paragrnph  (a).  (See  Sec.  232.)  The  process  for 
cr<'ating  rights  in  registered  designs  is  more  closely  analogous  to  copyrights. 
Furthermore,  tlie  specific  authorization  for  the  administrative  settlement  of 
copyright  infringement  claims  set  forth  in  paragraph  (b)  [and  not  present  in 
paragraph  (a)l  would  be  made  applicable  to  registered  designs,  which  in  our 
opinion  is  highly  desirable. 


ISl 

In  the  event  28  F.S.C.  1-J98fa)  is  amended  as  set  forth  in  Sec.  232,  it  is  recom- 
mended that  the  phrase  "descrilied  In  and  covered  by  a  patent  of  the  United 
.States"  be  inserted  after  the  word  -invention"  in  the  first  line.  This  will  reinstate 
tlie  language  present  in  the  current  law  with  respect  to  patented  inventions  and 
whicJi  was  probably  inadvertently  omitted.  Omitting  this  language  might  be 
interpreted  as  a  broadening  of  the  Government's  liability  to  cover  unpatented 
inventions. 

Subject  to  the  foregoing,  the  National  Aeronautics  and  Space  Administration 
would  have  no  objection  to  the  enactment  of  H.R.  2223. 

The  Office  of  Management  and  Budget  has  advised  that,  from  the  standpoint 
of  the  Administration's  program,  there  is  no  objection  to  the  submission  of  this 
report  to  the  Congress. 
Sincerely, 

Joseph  P.  Allen, 
Assistant  Adiii inistrator 

for  Legislative  Affairs. 

[Wliereupon,  at  12 :20  p.m.  the  hearing  adjourned  to  reconvene  at 
10  a.m.  on  May  11, 1971.] 


COPYRIGHT  LAW  REVISION 


WEDNESDAY,  MAY   14,   1975 

House  of  Kepresextatives, 
Subcommittee  ox  Courts,  Civil  Liberties, 
AND  the  Administration  of  Justice  of  the 

Committee  on  the  Judiciary, 

Washington,  D.C. 

The  subcommittee  met.  pursuant  to  notice,  at  10:10  a.m.  in  room 
2226,  Kaj^burn  House  Office  Building,  Hon.  Robert  W.  Kastenmeier 
[chairman  of  the  subcommittee]  presidin<j. 

Present:  Representatives  Kastenmeier,  Danielson,  Pattison.  and 
Mazzoli. 

Also  present:  Herbert  Fuchs,  counsel,  and  Thomas  E.  Mooney, 
associate  counsel. 

]Mr.  Kastenmeier.  The  hearing  will  come  to  order  on  the  third  morn- 
ing of  hearings  on  copyright  law  revision.  The  issue  under  discussion 
lends  itself  into  equal  division  of  time  between  those  in  favor  and  those 
opposed:  each  side  will  be  invited  to  divide  80  minutes  of  testimony 
among  its  members,  and  you  will  be  expected  to  stay  within  that  time 
frame. 

This  morning  six  national  library  associations  have  given  their 
entire  half-hour  to  Mr.  Edmon  Low.  Thereafter  four  representatives 
of  writers  and  publishers  will  share  their  30  minutes  in  arguing  the 
other  side  of  the  library  photocopying  issue. 

Furthermore,  the  Chair  will  announce  that  the  chairman  and  per- 
haps another  member  of  the  committee  will  have  to  excuse  themselves 
for  the  purpose  of  appearing  before  the  Rules  Committee  on  the  ques- 
tion of  the  Parole  Reorganization  Act  this  morning,  and  the  gentleman 
from  California,  Mr.  Danielson,  will  preside  during  that  period  of 
absence  of  the  Chair. 

Before  introducing  the  first  witness,  T  would  like  to  yield  to  our  Judi- 
ciary Committee  colleague  from  Kentucky,  Mr.  Mazzoli,  for  the  intro- 
duction of  one  of  the  witnesses, 

]Mr.  Mazzoli.  ]\Ir.  Chairman,  thank  you  very  much,  I  appreciate 
your  willingness  to  yield  today.  I  would  like  to  just  take  this  chance  to 
introduce  to  you  and  your  distinguished  subcommittee  a  lady  who  is 
from  mv  district  and  with  whom  I  snend  many  hours  on  airplanes,  fly- 
ing back  and  forth  from  the  District  of  Columbia  to  Louisville,  our 
home. 

Mrs.  Joan  Titley  Adams,  Mr.  Chairman,  is  testifying  in  your  first 
panel  today,  and  without  taking  any  more  of  your  valuable  time,  I 
would  just  like  to  commend  her  testimony  because  she  is  a  professor 
at  the  University  of  Louisville,  as  well  as  being  the  librarian  of  the 

(  183) 


184 

Sciences  Library.  She  has  been  in  the  Medical  Li})rary  Association  in 
virtually  all  of  its  positions,  including  the  board  of  directors.  She  like- 
wise holds  positions  in  the  University  of  Louisville  on  its  faculty  sen- 
ate. And  without  necessarily  knowino-  all  the  nuances  of  the  bill  before 
you,  which  is  very  complicated,  I  would  like  to  commend  her  testimony. 

Thank  you  very  m.uch,  Mr.  Chairman. 

Mr.  Kastenmeier.  Thank  you  for  this  introduction.  I  say  to  my  col- 
league I  am  sorry  we  can't  introduce  all  our  witnesses  as  fully  in  terms 
of  their  biographies. 

The  Chair  would  like  to  welcome  Mrs.  Adams  and  Mr.  Low.  I  under- 
stand Mr.  Low  this  morning  will  make  the  major  presentation  on  behalf 
of  tlie  liJH-aries.  Mr.  Low,  you  may  want  to  introduce  your  other  col- 
leagues. You  may  proceed  as  you  wish. 

TESTIMONY  OF  EDMON  LOW,  REPEESENTATIVE  OF  SIX  IIBRAHY 

ASSOCIATIONS 

Mr.  Low.  Thank  you,  Mr.  Chairman.  I  am  Edmon  Low,  and  I  will 
today  present  the  views  of  the  American  library  community  as  repre- 
sented through  six  major  library  associations.  With  me  are  representa- 
tives of  each  of  the  six  associations.  I  am  happy  to  present  to  you  Mr. 
Julius  Marke,  representing  the  law  libraries  and  chairman  of  their 
copyright  committee.  Mr.  McDonald,  at  my  right,  is  the  executive 
director  of  the  Association  of  Research  Libraries.  At  my  left,  Mrs. 
Adams — and  Mr.  Mazzoli,  we  share  your  enthusiasm  for  Mrs.  Adams 
and  her  work  in  our  library  community.  Next  is  Mrs.  Sommer,  who  is 
representing  the  Music  Library  Association,  and  who  is  the  chairman 
of  their  copyright  committee;  and  Mr.  Frank  McKenna,  who  is  the 
executive  director  of  the  Special  Libraries  Association.  And  then  with 
us  we  have  the  members  of  counsel,  sitting  behind  us  here,  My.  Sharaf, 
who  represents  the  Harvard  L^niversity  Library ;  Mr.  William  North, 
representing  the  American  Library  Association,  and  Mr.  Philip 
Brown,  representing  the  Association  of  Research  Libraries. 

Mr.  Kastenmeier.  Thank  you. 

Mr.  Low.  Because  of  our  time  limitation,  with  your  permission, 
Mr.  Chairman,  I  shall  omit  some  of  my  testimony  and  ask  that  this 
statement  be  admitted  into  the  record. 

Mr.  Kastenmeier.  Without  objection,  your  statement  in  its  entirety 
will  he  received  in  the  record.  You  may  proceed,  sir. 

Mr.  Low.  Thank  you. 

We  are  here  today  to  talk  about  library  copying  and  the  provisions 
of  the  copyright  revision  bill.  PI.R.  2228.  I  shall  be  presenting,  so  far 
as  I  am  able,  the  concerns  of  all  these  various  library  groups.  However, 
each  of  these  organizations  will  also  be  filing  a  statement  of  its  own, 
setting  forth  in  greater  detail  its  individual  concerns  about  provisions 
of  the  bill.  All  of  the  representatives  will  assist  me  in  answering 
particular  questions  you  may  have  concerning  our  testimony  and  the 
issues  raised. 

Although  our  testimony  today  is  limited  to  library  photocopying 
which  is  the  subject  of  this  hearing,  there  are  other  provisions  of  the 
bill  which  concern  us,  and  about  which  we  may  be  making  further 
statements  as  other  hearings  are  scheduled. 


185 

I  would  like  first  to  point  out  tliat,  although  this  copyright  revision 
bill  has  been  under  consideration  for  10  years,  the  library  photocopy- 
ing issue  is  still  an  important  unresolved  subject.  In  brief,  as  we  see 
it,  a  question  which  Congress  and  this  conunittee  must  decide  is 
wiiether  libraries  will  be  permitted — at  no  additional  expense — to 
continue  to  serve  the  public  by  the  long-standing  practice  of  providing 
single  copies  of  copyrighted  material  for  users'  research  or  study.  It 
IS  an  issue  with  direct  and  widespread  impact  on  the  general  public 
and  involves  both  the  right  of  access  to  library  materials  and  the  cost 
of  that  access. 

In  the  past  year  there  have  been  two  major  developments  affecting 
this  question.  In  the  fii-st  case  ever  brought  by  a  publisher,  the 
Williams  &  Wilkins  Co.,  against  a  library  the  courts  have  upheld  the 
photocopying  of  single  copies  of  copyrighted  medical  journal  articles 
as  being  within  the  doctrine  of  fair  use,  and  not  constituting  infringe- 
ment of  copyright.  It  is  in  part  because  this  case  consumed  7  years 
and  major  financial  outlay  that  libraries  are  concerned  about  the 
second  major  development,  which  is  the  introduction  last  year  into  the 
Senate  bill,  without  any  hearing,  of  a  new  and  undefined  limitation  on 
the  rights  of  libraries ;  namely,  the  concept  of  "systematic  reproduc- 
tion" of  either  single  or  multiple  copies  of  copyrighted  material. 

Now  when  we  talk  about  library  copying,  we  are  not  talking  about 
something  for  the  benefit  of  libraries  or  librarians,  we  are  talking 
about  something  that  is  carried  on  for  the  benefit  of  users  of  libraries 
who  include  citizens  from  all  walks  of  life  throughout  the  coimtry. 

When  we  are  talking  about  library  copying  practices,  we  are  talk- 
ing about  the  schoolboy  in  California  who  may  need  a  copy  of  an 
article  in  the  Los  Angeles  Times  for  a  project  he  is  working  on  in  his 
ninth-grade  class ;  or  about  a  judge  in  the  county  court  in  Middlesex 
County,  Mass.,  who  may  find  he  needs  a  copy  of  a  law  review  article 
which  bears  directlj'^  upon  a  difficult  question  of  law  which  has  arisen 
in  the  course  of  liis  work.  Or  about  the  doctor  in  downstate  Illinois 
who  has  a  patient  with  an  unusual  and  rare  disease  and  the  only  recent 
material  to  be  found  is  contained  in  an  obscure  journal  published  in 
Sweden,  and  available  only  through  the  Regional  Medical  Library 
system,  but  which  article  may  aid  him  in  saving  his  patient's  life. 
And  we  are  talking  about,  even,  a  member  of  this  committee  asking 
the  Congressional  Eeference  Service  of  the  Library  of  Congress  for  an 
article  dealing  with  copyright.  Or,  we  are  talking  about  a  musician 
who  is  preparing  a  scholarly  article  on  the  music  of  Mozart  and  needs 
to  take  with  him  to  study  a  copy  of  a  portion  of  a  recently  edited 
score  of  one  of  Mozart's  works  with  which  he  is  concerned. 

The  list  is  endless,  but  I  wish  to  emphasize  that  we  are  talking  about 
an  issue  that  very  broadly  affects  the  ability  of  people  in  this  country 
to  make  use  of  their  libraries  which  are  the  repository  and  storehouse 
of  man's  knowledge. 

I  should  note  here  that  copyright  is  not  a  constitutional  right,  such 
as  trial  by  jury  of  one's  peers.  The  Constitution  simply  authorizes 
the  Congress  to  create  such  a  right.  It  is  therefore  a  statutory  right, 
one  created  by  law,  Avhich  may  be  changed,  enlarged,  narrowed  or 
abolished  altogether  by  the  Congress  here  assembled.  It  is  a  law  en- 
acted not  for  the  benefit  of  an  individual  or  a  corporation,  but  for 

57-7SG— 7G— pt.  1 13 


186 

the  public  good  and  with  the  purpose,  as  the  Constitution  expresses 
it,  "to  promote  the  progress  of  science  and  useful  arts." 

Consequently,  in  revising  the  copyright  law  the  problem  for  Con- 
gress is  to  design  provisions  which  both  encourage  the  creation  of 
original  works  and  permit  the  widest  possible  access  and  dissemina- 
tion of  information  to  the  public ;  and,  where  these  goals  compete,  to 
strike  a  balance  which  best  serves  the  fundamental  objective  of  pro- 
moting learning,  scholarsliip,  and  the  arts. 

I  should  like  to  go  on  to  the  top  of  page  5.  At  present  I  am  director 
of  the  New  College  Library  at  Sarasota,  Fla.  New  College  is  a  small, 
but  very  fine,  private  college  and  its  problems  in  this  connection  are 
typical  of  the  two  thousand  small  and  medium-sized  colleges  through- 
out the  country.  While  our  library  is  liberally  supported  and  spends 
every  cent  it  can  afford  on  periodical  subscriptions,  we  cannot  possibly 
have  the  large  resources  of  a  university  like  the  one  at  Gainesville 
or  at  Tallahassee.  Yet,  our  faculty  memljers,  if  they  maintain  a  good 
quality  of  teaching  and  do  the  research  which  contributes  to  it,  must 
have  access  by  random  photocopying  at  times  to  the  larger  collections 
in  the  State  and  elsewhere. 

It  is  the  general  experience  of  the  library  communit}''  that  inter- 
library  loan  encourages  the  entering  of  additional  subscriptions  by 
the  library,  rather  than  reducing  the  number,  as  is  often  charged  by 
the  publishers.  It  is  a  truism  that  a  librarian  would  prefer  to  have 
a  title  at  hand,  rather  than  to  have  to  borrow,  even  under  the  most 
convenient  circumstances.  Consequently,  when  the  time  comes  around 
each  year  to  consider  the  list  of  periodical  subscriptions,  the  record 
of  interlibrary  loans  is  scanned  and  titles  are  included  from  which 
articles  have  been  requested  with  some  frequency  during  the  year. 
While  the  situation  varies,  in  our  library  the  number  is  two;  if  we 
have  had  two  or  more  requests  for  articles  from  the  same  title  during 
the  year,  we  enter  a  subscription.  This  not  only  indicates  how  the  pro- 
cedure can  help  the  periodical  publishers,  but  also  indicates  that  if 
only  one  article,  or  none  was  copied  from  a  title  during  a  year,  the 
journal  could  not  have  been  damaged  materially  in  the  process. 

It  is  not  only  the  small  schools  which  would  suffer  if  such  photo- 
copying were  eliminated,  however ;  the  scholars  at  Wisconsin  or  Michi- 
gan would  also  be  severely  put  to  it  to  continue  their  research  in  the 
same  way,  and  it  is  these  scholars  who  account  for  the  major  writing 
for  the  scholarly  journals.  The  journals  tliemselves,  therefore,  have 
a  stake  in  seeing  this  procedure  continued  in  a  reasonable  way. 

The  courts  have  long  recognized  that  some  reproduction  of  portions 
of  a  copyrighted  work  for  purposes  of  criticism,  teaching,  scholar- 
ship or  research  is  desirable,  and  this  judicial  concept  was  incor- 
porated in  section  107  of  the  revision  bill.  Libraries  have  operated 
all  these  years  under  this  principle,  but  it  does  lack  the  assurance  of 
freedom  of  liability  from  harassing  suits.  This  fair  use  concept  is 
necessarily  expressed  in  general  language  in  section  107  of  the  bill. 
So  a  librarian  is  not  able  to  feel  sure  until  a  court  decides  a  particular 
case  whether  his  actions,  undertaken  with  the  best  of  intentions,  is 
or  is  not  an  infringement. 

This  is  pointedly  illustrated  by  the  recently  decided  and  prior  men- 
tioned case  of  WilUams  &  Wilkhis.  This  suit  was  instituted  in  1968  and 
now,  only  now,  after  years  of  litigation  and  expenditures  of  many 


187 

thousands  of  dollars  on  eacli  side,  has  it  been  determined  that  the 
defendant  was  properly  obeying  the  law  after  all. 

Fair  use,  then,  is  not  really  a  right  to  copy  any  given  thing,  but 
only  a  defense  to  be  invoked  if  one  is  sued.  This  threat  of  suit,  even  if 
one  is  able  to  maintain  his  innocence  in  court,  is  very  real  because 
suits  are  costly  in  proportion  to  the  amount  for  which  one  is  sued.  This 
revision  bill  provides  not  only  for  a  demand  for  actual  damages,  but 
also  one  can  be  sued,  in  extreme  cases,  for  statutory  damages  up  to  a 
limit  of  $50,000  for  each  imagined  infringement.  Thus,  harassing  but 
unjustifiable  suits  are  really  invited  by  this  provision. 

In  light  of  the  above  we  librarians  believe  that  in  addition  to  sec- 
tion 107,  delineating  fair  use,  further  protection  is  needed  to  assure 
that  it  is  permissible  to  make  a  single  copy  as  an  aid  in  teaching  and 
research,  including  a  single  copy  as  part  of  an  interlibrary  loan  trans- 
action, and  that  such  activity  on  behalf  of  the  public  good  is  not  sub- 
ject to  possible  suit. 

Now,  I  want  to  emphasize  here  that  in  108,  the  provisions  that  we 
want  to  see  maintained  are  not  additions  to  107  in  the  sense  of  pro- 
viding further  opportunity  for  copying,  but  simply  a  more  precise 
explanation  of  what,  in  relation  to  libraries,  "fair  use"  means.  That  is, 
you  can  be  sued,  regardless  of  whether  you  are  guilty  or  not,  under  107. 
We  would  like  to  see  the  photocopying  practices  involving  single 
journal  articles  be  permitted  without  threats  of  suits. 

That  assurance  is  now  being  largely  provided  in  section  108,  (a) 
through  (f),  for  which  we  are  very  appreciative.  However,  we  are 
greatly  concerned  with  the  addition  of  subsections  108(g)  (1)  and  (2) 
which  take  back  the  very  right  set  forth  in  108  (a)  through  (f)  in 
the  most  part.  These  are  provisions  which  came  into  the  bill  in  the 
Senate  after  hearings  were  concluded  in  1973,  without  the  oppor- 
tunity for  discussions  by  library  representatives  with  Senator  Mc- 
Clellan's  committee.  Today's  hearings  are  the  first  opportunity  we 
have  to  express  publicly  our  very  deep  concern. 

Before  discussing  subsections  (g)  and  (h),  I  would  like  to  note 
there  is  also  a  particular  problem  in  the  interpretation  of  section  108 
(a)  which  can  affect  the  specialized  libraries  in  business,  industry, 
and  commerce.  This  is  discussed  in  Mr.  McKenna's  individual  state- 
ment for  the  Special  Library  Association,  and  he  can  also  answer 
questions  in  this  regard. 

Subsection  (g)  (1)  gives  us  concern  because  often  there  is  no  basis — 
this  is  one  that  says  if  an  assignment  was  made  and  then  people  came 
in,  you  would  have  to  recognize  whether  it  was  isolated,  or  essentially 
multiple  copies.  This  gives  us  concern  because  there  is  no  way  for  a 
library  employee  to  judge  whether  a  request  for  a  copy  represents  an 
isolated,  unrelated  reproduction,  as  specified  in  108(g)(1).  For  ex- 
ample, if  a  college  instructor  in  a  graduate  seminar  in  English  were 
to  recommend  to  his  students,  some  10  men  and  women  sitting  around 
a  table,  that  they  read  an  article  on  Milton's  poetry  that  appeared  10 
years  ago  in  publications  of  the  Modem  LangTiage  Association,  and  if 
two  of  them  over  the  next  week  were  to  go  to  that  college's  library  and 
look  at  that  article  and  decide  that  they  wanted  to  take  copies  back  to 
their  dormitory  for  further  study,  we  don't  see  how  there  is  any  prac- 
tical way  in  which  a  library  can  prevent  that  kind  of  reproduction  of 
a  single  copy  on  separate  occasions,  and  we  don't  think  they  should 


188 

have  to.  Also,  we  do  not  think  that  the  publication  will  be  damaged 
in  such  a  process.  And  yet,  the  Senate  committee  in  its  report  on  S. 
1361  cites  such  a  particular  instance. 

Section  108(g)(2)  says  that  the  rights  of  reproduction  and  dis- 
tribution do  not  extend  to  a  library  which  "engages  in  the  systematic 
reproduction  or  distribution  of  single  or  multiple  copies  or  phono- 
records  of  material  described  in  subsection  (d)."  The  materials  re- 
ferred to  in  (d)  are  journal  articles  or  small  portions  of  other  copy- 
righted works. 

This  gives  us  a  great  deal  of  concern  because  the  question  immedi- 
ately arises  as  to  what  constitutes  "systematic  reproduction."  To  the 
extent  that  we  are  able  to  puzzle  it  out,  it  appears  to  have  been  aimed 
at  practices  of  the  kind  which  were  upheld  as  fair  use  by  the  Court 
of  Claims  in  the  Williams  (&  Wilkins  case.  In  listening  to  my  pub- 
lisher and  author  friends,  the  preemment  example  which  they  give 
of  systematic  reproduction  has  always  been  the  regional  medical  li- 
brary system,  with  the  National  Library  of  Medicine  at  its  apex. 
Those  practices  of  the  National  Library  of  Medicine  were,  of  course, 
upheld  by  the  Court  of  Claims  in  Williams  <&  Wilhins  in  a  decision 
which  was  affirmed  this  year  by  the  U.S.  Supreme  Court. 

Now,  the  rest  of  this  page  goes  on  describing  how  the  regional 
medical  library  system  works,  and  in  the  interest  of  time  I  will  omit 
reading  that.  But  Mrs.  Adams  works  with  this  all  the  time  and  is  sure 
to  answer  any  questions  you  may  have  concerning  this,  and  also  talks 
about  it  in  the  particular  statement  she  filed. 

Going  to  the  top  of  page  9.  Another  large  and  highly  important 
type  of  system  for  which  this  systematic  reproduction  poses  problems 
is  that  of  the  county  and  multicounty  library  systems  throughout 
the  whole  country.  These  libraries  came  into  being  largely  through 
the  opportunity  provided  by  the  Federal  Library  Services  and  Con- 
struction Act.  This  was,  and  still  is,  an  effort  to  bring  books  and  other 
library  materials  to  the  millions  of  people,  often  in  rural  areas,  w^ho 
had  not  heretofore  had  library  services  available. 

To  get  counties  to  join  together,  vote  the  necessary  taxes,  agree  on 
a  coinmon  governing  board,  and  gain  consensus  on  the  sites  for  a 
central  library  and  for  the  smaller  satellite  libraries  in  the  system 
is  a  difficult  task.  It  is  often  made  possible  only  by  the  promise  to  the 
citizens  of  much  broader  areas  of  information  which  w^ll  be  made 
available  to  them  not  only  from  their  small  but  growing  collection 
in  each  neighborhood,  but  also  through  loans  from  the  central  library 
and  through  it  from  larger  collections  elsewhere.  In  this,  some  copying 
of  periodical  articles  is  occasionally  involved,  but  it  does  not  result 
in  fewer  subscriptions — in  fact,  before  the  founding  of  many  of  these 
libraries,  there  were  no  periodical  subscriptions  at  all  in  the  area. 
Because  interlibrary  loan  is  one  of  the  vital  elements  in  this  concept 
which  has  been  so  mutually  beneficial  to  all,  it  is  urged  that  no  restric- 
tions be  imposed  which  would  diminish  the  effectiveness  of  the  pro- 
gram. Such  a  diminution,  if  it  occurred,  would  be  as  much  against 
the  interest  of  the  publishers  as  against  the  citizens  the  libraries  serve. 
I  should  like  to  give  you  an  illustration  from  my  home  State  of 
Oklahoma,  which  I  know  well.  I  am  in  Florida  now,  but  Oklahoma  is 
my  native  State.  A  few  years  ago,  the  Western  Plains  library  system 
was  established  consisting  of  four  counties  in  western  Oklahoma.  At 


189 

the  time  of  its  organization,  tliere  was  a  single  library  in  each  of  two 
counties.  The  other  two  had  no  libraries.  Now  there  are  seven  libraries 
in  the  four  counties  and  tAvo  bookmobiles  are  operating  regularly.  At 
the  beginning,  the  2  original  libraries  subscribed  to  20  periodicals 
between  them.  The  7  libraries  now  subscribe  to  over  300.  The  combined 
annual  book  budget  of  the  two  original  libraries  was  under  $2,500; 
the  annual  book  budget  for  the  seven  is  now  $42,000. 

In  addition,  they  have  encouraged  school  libraries  to  develop  collec- 
tions of  periodicals  and  books  and  are  now  promoting  with  success 
the  creation  of  home  collections  of  books  and  periodicals.  This  tre- 
mendous increase  in  acquisition  of  materials  has  obviously  benefited 
the  publishers  of  materials  as  well  as  the  citizens  the  libraries  serve. 
This  kind  of  multicounty  library  is  now  found  in  every  State  in 
the  Union,  and  over  the  2  decades  the  Library  Services  and  Construc- 
tion Act  has  been  in  existence  millions  of  dollars  of  Federal  money 
and  matching  local  funds  have  been  expended  for  this  kind  of  service. 
The  importance  of  this  activity  was  recognized  in  the  Senate  report 
last  summer,  accompanying  S.  1361,  in  the  portion  discussing  sys- 
tematic reproduction  by  saying,  "The  photocopying  needs  of  such 
operations  as  multicounty  regional  systems  must  be  met,"  but  no  pro- 
vision was  made  in  the  law  to  specifically  provide  for  these  needs. 
Section  108(g)  (2)  would  prohibit  their  copying  activity,  and  I  believe 
would  do  much  mischief  indeed. 

If  I  may  drop  to  tlie  last  paragraph  on  the  page.  We  are  also  con- 
cerned with  section  108  (li)  which  would  limit  the  rights  otherwise 
granted  under  section  108  b}^  excluding  a  musical  work,  pictorial, 
graphic,  and  other  audiovisual  works.  These  exclusions  are  illogical. 
The  need  of  the  scholar  doing  research  in  music  for  a  copy  of  a  portion 
of  a  score  is  as  legitimate  and  proper  as  that  of  the  scholar  doing  any 
other  kind  of  research.  Likewise,  the  copying  of  one  map  from  an 
atlas  or  a  page  of  diagrams  and  plans  from  a  technical  journal  may 
be  just  as  important  as  any  other  kind  of  material  for  research.  I  will 
skip  the  next  paragraph. 

Mrs.  Susan  Sommer  of  the  Music  Library  Association  is  with  us 
today  and  can  provide  further  information  about  the  problems  posed 
by  this  section  of  the  bill  in  relation  to  music.  Dr.  Frank  McKenna, 
of  the  Special  Libraries  Association,  is  also  here  and  can  discuss  the 
problems  in  relation  to  atlas  or  other  graphic  materials  in  books  and 
periodicals. 

If  I  may  go  to  the  top  of  page  12.  The  paragraphs  following  what 
I  was  reading  describe  the  formation  of  a  study  group  between  the 
libraries  and  the  publishers  to  see  if  there  were  agreements  we  could 
reach  in  this  area  of  photocopying ;  and  we  have  had  several  meetings 
in  this  regard. 

There  are,  of  course,  different  views  of  the  significance  of  the  work 
performed  to  date  by  the  conference  and  its  working  group.  The  work 
has  focused  upon  the  mechanics  and  the  feasibility  of  possible  mecha- 
nisms for  collecting  payments  for  photocopying  of  copyrighted  ma- 
terials. But  I  should  like  to  emphasize  here  that  there  has  been  no 
agreement  as  to  whether  such  a  payment  mechanism  is  accei^table 
to  libraries  even  if  it  is  workable,  and  also,  I  m.ay  say,  no  seemingly 
Avorkable  mechanism  has  yet  been  advanced  in  that  it  still  appears  it 
would  take  dollars  to  collect  dimes.  There  has  also  been  no  agreement 


190 

as  to  the  categories  of  publications  to  which  sucli  a  meclianism  should 
be  applied  and  no  change  in  the  position  of  libraries  that  their  cur- 
rent photocopying  practices  are  entirely  lawful  and  within  the  fair 
use  holding  of  the  Williams  &  Wilkins  case,  and  should  not  in  any 
respect  be  treated  as  infringing  rights  of  the  copyright  proprietor  in 
the  provisions  of  any  new  legislation. 

I  should  like  to  point  out  some  reasons  why  we  think  licensing  and 
payment  of  royalties  by  libraries  for  the  photocopying  they  do  is  not 
justified.  First,  many  publishers  already  have  variable  pricing  for 
journals;  that  is,  they  charge  a  considerably  higher  price  for  the  same 
journal  for  a  library  subscription  than  for  an  individual  subscription. 
These  prices  to  libraries  often  run  quite  high,  subscriptions  of  $100  to 
$300  a  year  are  not  uncormnon;  a  few  run  $1,000  or  more;  and  the 
$50  to  $100  price  is  quite  commonplace  in  the  scientific  field.  These 
higher  subscription  prices  to  libraries  presumably  are  designed  in 
many  cases  to  include  charges  for  anticipated  copying.  Some  journal 
publishers  have  also  received  substantial  Federal  assistance  in  mod- 
ernizing their  editorial  and  manufacturing  procedures.  Other  jour- 
nals, and  also  some  of  those  just  mentioned,  have  already  had  major 
contributions  of  public  funds  in  the  nature  of  per-page  charges,  usualh'- 
in  the  range  of  $50  to  $100  per  printed  page  paid  by  the  author  or  by  a 
Federal  grant  which  is  financing  his  work. 

The  author,  on  the  other  hand,  is  usually  not  paid  by  the  publisher 
for  his  work  in  writing  the  article,  but  the  library  or  the  institution 
where  tlie  author  is  located  often  spends  a  sizable  amount  for  inter- 
library  loan  postage  and  handling  to  aid  him  in  preparation  of  his 
article  which  the  periodical  then  receives  without  cost.  As  an  example, 
my  own  small  library  spent  during  this  past  year  over  $100  on  inter- 
library  loan  expense  for  books  to  enable  a  professor  to  write  an  article 
for  a  historical  journal,  but  the  journal  did  not  pay  him  an}' thing 
for  the  article. 

In  the  light  of  these  contributions  which  the  libraries  and  the 
public  already  make  to  the  publication  of  these  works,  it  seems  to  us 
unreasonable  for  journal  publishers  to  demand  still  further  payment 
from  libraries,  and  eventually  the  public,  for  the  occasional  photo- 
copying of  individual  articles  for  library  users.  It  seems  even  more 
unreasonable  in  view  of  the  fact  that  by  making  the  information  con- 
cerned available  to  those  with  current,  specific  needs  for  it,  library 
photocopying  fosters  the  basic  purpose  of  the  authors  of  such  articles. 
But  when  it  also  is  noted  that  there  is  no  evidence  that  the  libraries' 
policies  have  caused  publishers  any  harm  whatsoever,  and  ma;/  actually 
increase  their  subscriptions,  it  is  clear  that  such  demands  are  completely 
unjustified  and  the  public  interest  requires  that  they  be  rejected  by 
Congress. 

For  the  reasons  we  have  advanced,  we  urge  that  sections  108(g) 
(1),  and  (2),  and  (h)  be  deleted  from  the  bill,  since  these  sections  are 
taking  away  the  advantao:es  for  the  most  part  granted  in  108  (a) 
through  (f ).  This  would  also  be  in  accord  with  the  WUlimns  &  WiU^ins 
case  decision  and  would  permit  libraries  to  continue  the  long  estab- 
lished library  service  of  providing  a  single  photocopy  of  a  single  article 
or  excerpt  from  a  copyrighted  periodical  or  book  for  a  patron's  use 
without  incurring  liability  for  copyright  royalties. 

It  has  been  a  pleasure  to  appear  before  you  today,  Mr.  Chairman, 
and  I  assure  you  that  we  are  ready  to  be  of  assistance  in  any  way  we 


191 

can  toward  a  satisfactory  resolution  of  this  very  difficult  but  im- 
portant problem  to  us. 

Mr.  Kastexmeier.  Thank  you,  Mr.  Low,  for  a  very  informative 
statement,  a  very  useful  statement. 

Off  the  record. 

[Discussion  off  the  record.] 

Mr.  Kastenmeier.  Mr.  Low,  you  indicated  this  morning  that  you 
and  your  colleagues  would  address  the  question  of  photocopying,  but 
that  there  were  a  number  of  other  provisions  in  the  bill  with  which 
librarians  were  concerned,  and  you  would  hope  to  testify  later  on  those 
areas;  is  that  correct? 

Mr.  Low.  Yes. 

Mr.  Kastenmeier.  Will  it  be  your  panel,  or  will  it  be  a  different  set 
of  witnesses  wo  might  have  with  respect  to  other  questions? 

]Mr.  Lev/.  I  think  it  would  be  this  panel,  but  since  their  judgment 
may  have  been  in  question  for  selecting  me,  I  can't  be  sure  that  I 
v.dll  be  speaking  again. 

Mr.  Kastexmeier.  At  what  point  in  time  did  the  photocopying 
that  takes  place  in  libraries,  really  originate,  10  years  ago,  15  years 
ago ;  can  you  place  that  point  in  time  for  us  ? 

Mr.  Low.  The  electrostatic  photocopying — Xeroxing,  as  it  is  often 
called — really  came  to  the  fore  about  1960,  and  became  widely  used 
in  the  ensuing  years  thereafter.  However,  it  has  not  become  a  matter 
of  enough  concern,  apparently — I  wasn't  working  with  the  committee 
at  that  time — when  testimony  was  taken  before  your  committee  in 
1965  and  1966,  along  there,  to  have  been  a  major  problem. 

It  has  come  to  the  fore  in  recent  years,  particularly  because  there 
has  been  a  considerable  amount  of  photocopying  because  of  the  in- 
crease in  the  amount  of  recorded  knowledge,  and  the  impossibility 
of  any  library  being  able  to  have  a  major  portion  of  it ;  and  also  because 
of  the  information  of  library  systems,  so-called,  many  of  which  were 
not  desigTied  for  or  concerned  with  photocopying,  but  were  con- 
cerned with  promoting  better  library  arrangements  in  the  area  of  cen- 
tralized cataloging,  and  so  on. 

But  the  creation  of  systems  seems  to  have  concerned  particularly 
our  publisher  friends — and  we  would  consider  the  publishers  our 
friends  because  we  have  many  things  in  common,  much  m.ore  than  our 
differences,  in  spite  of  those  differences  that  appear  before  you  today. 
So,  we  believe  that  these  systems  as  yet  do  not  pose  any  threats  of 
damage  to  the  publishers  because  they  were  not  primarily  created  for 
the  purpose  of  promoting  photocopying  in  the  sense  of  trying  to  get 
one  periodical  here,  and  let  it  serve  for  a  large  group  in  the  surround- 
ing area,  and  discourage  subscriptions  by  the  surrounding  libraries. 

Mr.  IC^STEisTMEiER.  I  take  it  the  provisions  of  the  bill  passed  by  the 
House  in  1967,  they  also  would  not  have  been  adequate,  or  at  least  ac- 
ceptable, for  libraries  in  terms  of  photocopying;  is  that  correct? 

Mr.  Low.  Yes.  In  regard  to  prior  use,  you  made  the  statement  that 
you  are  not  attempting  to  encourage  or  narrow,  but  simply  put  in  legal 
form,  the  judicial  concept  of  fair  use. 

Now,  particularly  with  the  suit  of  Williams  &  WilJdns — and  I  don't 
want  to  belabor  that  too  much — where  they  think  that  some  copying 
is  damaging  their  livelihood,  they  can  bring  a  suit — ^that's  the  weak- 
ness of  107  that  we  have  been  greatly  concerned  with  since  that  time. 
This  cannot  be  controlled  if  you  have  a  periodical  publisher  that  felt 


192 

that,  well,  his  subscriptions  were  diminishino;  and  the  reason  why  is 
very  hard  to  determine;  photocopying  is  often  singled  out  and  he 
becomes  convinced  that,  if  it  weren't  for  photocopying,  he  would  be 
in  much  better  shape,  so,  the  only  thing  to  do  is  to  use  tlie  library. 
And  that  may  not  be  the  reason  for  diminishing  subscriptions  at  all. 
It  may  be  a  reduction  in  funds,  and  the  library  cannot  afford  to  sub- 
scribe to  all  the  journals  as  in  the  past;  and  that  becomes  an  increas- 
ing problem  as  money  for  higher  education  is  becoming  more  limited 
these  days  than  it  was  in  the  late  1960-s  and  the  last  few  years,  and 
periodical  subscriptions  have  to  be  discontinued. 

Mr.  Kastenmeier.  Is  it  your  position  that  photocopying  does  not 
affect  in  the  final  analysis,  in  neutral  terms,  the  number  of  copies  that 
could  be  sold  by  the  publisher  of  a  given  periodical  or  magazine? 

Mr.  Low.  We  believe  that,  and  in  my  experience  over  quite  a  long 
time,  I  found  no  evidence  otherwise.  I  would  like  to  have  Mr.  INIc- 
Donald,  who  is  the  director  of  the  Association  of  Kesearch  Libraries, 
and  represents  the  large  research  libraries  who  do  more  copying  than 
the  smaller  libraries,  but  often  in  response  to  requests  that  come  in 
from  them,  to  comment  on  that,  too. 

Mr.  McDoxALD.  I  would  be  happy  to.  What  evidence  there  is  sug- 
gests that  subscriptions  are  not  diminished.  That  the  practice  of  inter- 
library  loans  in  fact  tends  to  advertise  journals  and  to  increase  sales. 
Wo  know  less  about  this  than  we  would  like  to  know,  but  we  look  to 
Britain  for  a  model.  As  you  may  know,  the  British  Government  has 
established  a  national  library  service.  The  British  Library  Lending 
Division  has  evidence  that  its  loans  of  periodicals  and  photocopies  of 
journals  promote  subscriptions.  Very  often  from  the  field  the}-  get  a 
request  for  any  issue  of  a  given  journal.  The  obvious  intent  of  that 
request  is  to  inspect  that  issue  with  the  thought  of  entering  a  sub- 
scription. They  have  done  a  little  checking  on  this  and  have  deter- 
mined that  this  advertising  effect  has,  in  fact,  resulted  in  subscriptions. 

I  would  go  on  to  say  that  our  friends  on  the  publishing  side  have 
never  really  entered  any  evidence  of  economic  damage.  Certainly  in 
the  Williams  <&  Wilkins  case,  no  such  evidence  was  presented. 

Many  libraries  feel  that  interlibrary  loan  practice  is  a  stimulus  to 
publication  and  research,  and  that  rather  than  resulting  in  damage, 
quite  the  opposite  is  true. 

]\Ir.  Kastenmeier.  Of  course,  I  think  it  could  be  predicted  that 
many  publishers  w-ould  be  sensitive  because  there  are  many  publica- 
tions which  are,  in  terms  of  interest  and  specialty,  very  narrow  in- 
deed— medical  publications,  for  example — and  therefore  there  is  a  lim- 
ited opportunity  to  develop  subscriptions.  And  if  that  is  in  any  way 
diminished,  it  w-ould  probably  be  terribly  harmful  to  that  publication. 
But,  it  is  difficult  to  judge,  as  you  say,  what  the  cause  may  be. 

Now,  in  terms  of  your  working  group,  I  take  it  you  are  considering 
this  is  an  ongoing  enterprise,  and  you  are  considering  a  number  of 
alternatives;  one  would  be  what  the  language  should  be  in  terms  of 
limitation  of  the  construction  of  "fair  use,"  or  whether  copying  should 
be  permitted  with  some  sort  of  royalty  which  you  suggested,  talking 
about  dollars  and  dimes.  "Wliich  would  you  prefer?  Would  you  prefer  a 
wider,  a  broader  availability  in  terms  of  photocopjdng  with  smaller 
fees  attached,  or  a  somewhat  more  restricted  statutory  permission 
to  copy  ? 


193 

Mr.  Low.  As  I  indicated,  we  feel  at  the  present  time  that  no  fee 
should  be  charged.  Wien  we  started  out  in  the  working  group,  the 
first  thing  we  attacked  was  the  systematic  copying;  that  is,  what  con- 
stituted systematic  copying.  And  we  were  totally  una,ble  to  reach 
agreement  on  that.  Some  of  our  publishers  insisted  that  the  existence  of 
a  union  list  of  serials  and  State  and  regional  list  of  periodicals  that 
shows  where  the  periodicals  can  be  located,  the  existence  of  these  lists 
constituted  a  system  in  itself,  and  consequently  all  interlibrary  loans 
became  systematic  and  prohibited. 

Others  felt  that  at  least  the  large  research  libraries  which  did 
much  copying,  simply  by  the  amount  of  copying  they  did  it  must  be 
systematic  automatically'^  because  of  the  amount  they  did. 

I  tried  to  point  out  that  often  this  amount  done  by  the  large  re- 
search libraries  was  smaller  libraries  like  mine  turning  to  them  for 
copies  of  articles,  and  so  on,  which  seemed  that  it  would  be  acceptable 
in  a  way.  So,  we  were  not  able  to  reach  any  consensus  on  systematic 
copying. 

The  work  we  have  done  on  the  mechanism  was  simply  to  see  whether 
there  was  any  mechanism  that  was  feasible,  in  case  it  was  desirable. 
IVe  didn't  agree  that  any  mechanism  that  involved  royalty  payments 
was  desirable  at  this  time.  But  we  have  been  investigating  as  to  whether 
or  not  it  was  feasible;  if  Jiot,  there  wasn't  much  point  in  considering 
further  whether  it  was  desirable  or  not. 

We  have  not  yet  come  up  with  a  feasible  mechanism  that  seems  at 
least  to  me  Avorkable. 

jNIr.  Kastenmeier.  One  last  question.  In  terms  of  the  bill  before 
this  committee,  H.E.  2223,  the  recommendation  that  you  make  in  the 
language  on  behalf  of  the  library  users  with  respect  to  photocopying  is 
that  sections  108(g)  (1),  (2),  and  subsection  (h)  be  deleted  from 
the  bill.  This  is  the  only  recommendation  you  would  make  with  refer- 
ence to  108  ? 

Mr.  Low.  Yes;  well,  we  have  a  little  concern  with  108(a)  (2),  which 
affects  the  Special  Libraries  Association  in  which  Mr.  McKenna 

Mr.  McKenxa.  May  I  correct  that?  That  is  section  108(a)  (1). 

Mr.  Low.  Yes. 

]\Ir.  McKenna.  The  present  language  is,  "The  reproduction  or  dis- 
tribution is  made  without  any  purpose  of  direct  or  indirect  commercial 
advantage." 

Now,  the  question  arises,  what  is  the  interpretation  to  be  placed  on 
"direct  or  indirect  commercial  advantage"?  The  majority  of  the  spe- 
cialized libraries  exist  in  business  and  commerce,  and  their  parent  orga- 
nizations have  a  direct  or  indirect  commercial  interest  and  commercial 
advantage,  profit,  or  lower  prices,  hopefully. 

It  has  occurred  to  us  that  the  existing  language  of  section  108  (a)  (1) 
may  have  been  intended  to  proliibit  a  commercial  advantage  to  an 
unauthorized  reprinter,  or  republisher,  without  thinking,  or  realizing 
that  special  libraries  existed  in  American  business. 

So  that  in  the  statement  of  the  Special  Libraries  Association  we 
have  recommended  two  possible  alternatives.  One  is  to  add  to  the 
existing  words  so  that  it  will  read,  "Without  any  purpose  of  direct 
or  indirect  commercial  advantage  to  a  reprinter,  or  republisher." 


194 

The  alternate  suggestion  is  that,  through  appropriate  commen- 
tary in  the  legislative  history,  it  indicates  that  the  provision  is  not  in- 
tended for  special  libraries. 

Mr.  Kastenmeier.  I  will  now  yield  to  the  gentleman  from  Cali- 
fornia, Mr.  Danielson. 

Mr.  Danielson.  Will  you  tell  me,  please,  what  procedures  the  li- 
braries used  for  copying  prior  to  the  advent  of  the  quick  copying 
machines  ? 

Mr.  Low.  The  photographic  method  had  been  used  for  a  long  time, 
dating  back  even  prior  to  the  first  Copyright  Act.  It  was  a  diifferent 
photographic  process,  photographing  the  page  instead  of  Xeroxing. 

Mr.  Danielson.  You  are  talking  about  a  large,  somewhat  cumber- 
some photostat  machine,  and  it  made  usually  a  white  copy  on  black 
paper. 

Mr.  Low.  That  is  correct. 

Mr.  Danielson.  And  that  was  fairly  expensive  to  operate,  was  it 
not? 

Mr.  Low.  Yes ;  it  was. 

Mr.  Danielson.  And  per  page  the  product  was  maybe  something 
like  50  cents,  something  like  that  ? 

Mr.  Low\  Yes.  And  also,  as  a  result  of  that  and  the  inconvenience, 
we  shipped  much  more  material,  sent  the  whole  volume. 

Mr.  Danielson.  Just  sent  them  the  book,  let  them  look  at  it,  and 
send  it  back. 

Mr.  Low.  That's  right. 

Mr.  Danielson.  Now,  under  those  circumstances,  did  you  have  many 
complaints — I'm  going  to  use  the  word  in  the  very  broad  sense — from 
the  publishers  of  the  journals  and  books  ? 

Mr.  Low.  Not  that  I  know  of.  Of  course,  sending  the  material  was 
completely  legal. 

Mr.  Danielson.  I  have  a  very  narrow  area  of  inquiry.  You  did  not 
have  complaints  at  that  time. 

Mr.  Low.  No ;  we  did  not ;  I  believe  that's  correct. 

Mr.  Danielson.  In  other  words,  it  was  the  advent  of  the  quick  copy- 
ing, and  low-cost  copying  that  brought  on  that  problem. 

Mr.  Low.  That's  correct. 

Mr.  Danielson.  You  mentioned  in  your  statement  that  with  some 
technical  journals,  at  least,  there  is  a  different  subscription  rate  for  the 
library  than  for,  I  guess  you  would  call  it,  the  individual  subscriber. 

Mr.  Low.  Yes. 

Mr.  Danielson.  Would  you  give  me  some  examples  of  that,  please? 

Mr.  Low.  I  have  a  list  of  examples,  but  when  I  looked  in  my 
folder 

Mr.  Danielson.  Just  a  few  off  the  top  of  your  head. 

Mr.  Low.  Well,  the  American  Behavioral  Sciences  is  one,  I  remem- 
ber making  the  list. 

]Mr.  Danielson.  Sir,  I'm  not  that  interested  in  the  title,  but  do  you 
mean  it's  $1  for  the  private  citizen,  and  $100  for  the  library?  Give 
me  some  examples  of  the  difference,  please. 

Mr.  Low.  Not  that  spread.  I  went  through  my  own  libraiy,  went 
through  the  A's,  and  found  about  40  just  in  the  A's  alone,  and  that  is 
a  small  collection.  It  is  a  going  practice. 

Mr.  Danielson.  Would  you  give  me  an  example,  please  ? 


195 

Mr,  Low.  Of  the  price  ? 

Mr.  Danielson.  Yes,  please. 

Mr.  Low.  The  price  will  run  from  $12  for  the  individual  and  $30 
for  the  library.  It's  often  double  the  individual  price,  to  the  library ; 
sometimes  the  spread  is  much  wider  than  that. 

Mr.  Danielson.  Is  that  a  published  practice  ?  By  that  I  mean,  does 
it  appear  within  the  publication  that  the  subscription  for  a  library  is 
three  x  dollars,  and  for  the  individual  one  and  a  half  a?,  maybe. 

Mr.  Low.  That  is  correct. 

Mr.  Danielson.  You  are  confident  that  is  a  prevailing  practice.  I  see 
five  heads  nodding  affirmatively,  and  one  is  rather  umnoving,  here. 
[Laughter.] 

Mr.  Low.  Yes,  that  is  an  established  practice. 

Mr.  Danielson.  All  right,  that's  good  enough. 

Last,  on  these  technical  journals,  what  is  the  practice  in  the  trade 
as  to  this  one  respect,  are  they  sold  by  subscription  exclusively,  or  are 
they  sold  by  subscription  and  also  sold  through  retail  outlets,  as  we 
pick  up  a  magazine  at  a  newsstand,  for  example  ? 

;Mr.  Low.  Most  of  these  are  not  sold,  you  do  not  find  them  in  the 
newsstand ;  I  believe  I'm  correct  on  that. 

Mr.  Danielson.  Well,  I  used  the  words  "retail  outlets"  to  differen- 
tiate from  newsstand,  because  I  imagine  there  is  some  place  besides 
newsstands  where  you  can  buy  them. 

Mr.  Low.  I  don't  believe  you  can  buy  them — of  course  you  have 
subscription  agents  where  you  can  place  your  subscription,  most  li- 
braries do  in  order  to  get  the  list  all  on  one  bill.  But  not  the  retail 
outlets,  in  any  way,  shape,  or  form. 

Mr.  Danielson.  You  don't  run  out  and  get  one  like  you  get  last 
month's  copy  of — whatever. 

Mr.  Low.  No ;  you  do  not. 

Mr.  Danielson.  You  subscribe  for  a  year,  or  a  period  of  time. 

Mr.  Low.  Yes. 

Mr.  Danielson.  The  gentleman  on  the  end  has  a  comment,  please. 

Mr.  Marke.  ;My  name  is  ;Marke.  I  think  it  should  be  recognized  that 
many  of  these  publications  are  out  of  print  within  a  period  of  2 
months,  or  3  months  after  the  issue  has  been  made  available  to  the 
public.  So,  it  is  not  even  possible  to  buy  it  through  any  source. 

Mr.  Danielson.  Well,  that's  my  third  question.  Once  they  are  out 
of  print,  the  subscriptions  have  all  been  sent  out  through  the  mail, 
suppose  you  want  to  pick  up  a  copy  of,  let  us  say.  May  1970 — that's 
5  years  ago — issue  of  Journal  XYZ,  a  technical  journal,  where  do  you 
get  it? 

Mr.  Marke.  It's  a  rare  occasion  when  this  is  available  through  the 
publisher. 

Mr.  Danielson.  In  other  words,  you  write  to  the  publisher,  you  in- 
quire of  the  publisher,  does  he  have  a  spare  copy ;  is  that  the  way  it 
is  done  ? 

Mr.  Marke.  Yes. 

Mr.  Danielson.  The  second  gentleman  has  an  answer  for  us.  Wliat 
is  your  name,  please  ? 

Mr.  McDonald.  McDonald.  Mr.  Danielson,  people  subscribe  to  the 
periodicals,  but  they  have  neither  the  space  nor  the  money  to  keep  and 


196 

bind  these  periodicals,  except  the  large  libraries,  such  as  represented 
by  the  Association  of  Research  Libraries,  which  are  the  libraries  of 
record.  They  do  assume  the  responsibility  of  keeping  and  binding  back 
jfiles  of  periodicals. 

So,  when  a  request  comes  to  us,  it  may  well  come  from  an  individual 
xyr  library  wliich  once  subscribed  to  that  periodical,  paid  the  subscrip- 
tion price,  but  did  not  choose  to  keep  and  bind  it. 

Mr.  Danielson.  Well,  suppose  I'm  doing  some  research  and  I  find 
through  the  Library  of  Congress  there  is  an  article  in  a  4-  or  5-year- 
old  issue  of  a  technical  journal — forget  that  I  have  access  to  the  Li- 
brary of  Congress — where  would  I  get  it  ? 

Mr.  IMarke.  Well,  on  occasion  some  libraries  might  have  accumu- 
lated some  extra  copies  in  what  is  called  the  "dup.  list,"  and  librarians 
very  carefully  go  through  these  dup.  lists — duplicate  lists — to  see 
whether  any  of  these  issues  are  available  through  that  list.  But  other- 
wise there  is  no  formal  structure. 

]Mr.  Danielson.  I,  an  individual  citizen,  how  would  I  find  it?  I 
didn't  know  there  was  a  dup.  list,  how  would  I  find  it  ? 

Mr.  Marke.  You  couldn't. 

Mr.  Danielson.  That's  the  question. 

I  have  no  further  questions,  I  yield  to  the  gentleman  from  New  York, 
Mr.  Pattison. 

Mr.  Pattison.  Thank  you,  Mr.  Chairman. 

I  might  just  as  an  aside  say  of  the  use  of  the  word  "Xeroxing,"  that 
if  the  general  counsel  of  Xerox  reads  that  in  the  testimony,  he  will 
lose  whatever  little  hair  he  has  left. 

]Mr.  Danielson.  That's  a  real  hazard.  [Laughter.] 

Mr.  Pattison.  To  you,  maybe.  [Laughter.] 

Mr.  Pattison.  I  would  like  to  point  out  a  few  things.  You  refer  to  the 
Williams  c&  WiJkhu  case  as  being  "affirmed"  by  the  Supreme  Court. 
In  fact,  the  Supreme  Court's  was  a  4-to-4  decision,  I  believe.  I  don't 
believe  it  can  be  said  it  was  "affirmed."  I  think  then  it  was  a  4-to-3 
decision  in  the  Circuit  Court  of  Claims.  I  think  that  kind  of  indicates 
the  problem  that  we  will  be  having,  that  you  have.  Yes,  sir? 

Mr.  McDonald.  With  all  respect,  Mr.  Pattison,  I  believe  that  the 
language  of  the  decision  passed  down  by  the  court  says,  "By  reason  of 
a  divided  court  the  decision  of  i^ao,  lower  court  is  affirmed" ;  those  are 
the  words  that  the  Supreme  Court  used. 

]Mr.  Pattison.  OK.  I  was  trying  to  point  out  that  was  not  one  of 
those  decisions  where  reasonable  men  would  not  disagree.  [Laughter.] 
Like  yourself,  some  of  my  best  friends  are  publishers  also.  [Laughter.] 

Mr.  McDonald.  We  are  trying  to  be  very  scrupulous  about  this  and 
resisted  the  temptation  to  say  that  the  decision  was  "upheld"  because 
the  Supreme  Court  avoided  using  that  word  itself. 

]\Tr.  Pattison.  The  thing  that  I  see  here,  this  whole  dispute,  is  not 
so  different  from  that,  for  instance,  with  the  CATV  dispute.  Every- 
l)ody  seems  to  say,  we  are  helping  the  other  guy  more  than  he  has  been 
hurt.  The  CATV  peo]:)le  said  the  same  thing  about  broadcasting. 
Broadcasting  was  delighted  to  have  CATV  out  there  when  there  was 
nobody  competing  with  them;  it  increased  their  market.  Then,  all  of 
a  sudden  when  you  get  the  overlapping  signals,  and  duplication,  you've 
got  a  different  thing.  That  kind  of  competing  interest,  I  think,  is  well 
pointed  out  in  your  statement  that,  indeed,  there  must  be  some  sort  of 


197 

a  reasonable  compromise  that  will  probably  be  acceptable  to  no  one.  but 
will  probably  be  arrived  at  somewhere  along  the  line,  or  we  won't  get  a 
bill  passed  at  all. 

I  just  have  one  minor  question  about  your  statement  on  page  12.  You 
referred  to  something  that  I'm  not  familiar  with,  and  I'm  just  curious 
about  it,  where  it  says,  "Some  journal  publishers  have  received  sub- 
stantial Federal  assistance  in  modernizing  their  editorial  and  manu- 
facturing procedures,"  and  I  don't  know  what  you  are  referring  to 
there ;  I'm  just  curious  as  to  what  that  is. 

]\Ir.  Low.  John,  would  you  care  to  comment  on  that  ? 

Mr.  ]McDoNALD.  I'll  try,  but  I  believe  Mr.  McKenna  knows  more 
about  it  than  I.  Many  of  the  scholarly  societies,  the  American  Chemical 
Society,  have  had  assistance  from  Federal  agencies,  such  as  the  Xa- 
tional  Science  Foundation,  in  one  or  another  of  their  pursuits.  The 
nature  and  extent  of  these  subsidies  is  not  something  I  am  an  expert 
on  by  any  means,  but  there  are  further  subsidies  that  might  be  cited. 

Often  the  authors  who  publish  in  these  journals  have  conducted 
their  research  with  Federal  support.  As  ]Mr.  Low's  testimony  points 
out.  the  publishers  are  paid  page  charges  to  get  this  information  dis- 
tributed through  these  periodicals.  The  subscription  prices  themselves 
liave  risen,  I  believe,  in  excess  of  the  cost  of  living.  So,  it  seems  that 
these  subscriptions  have  been  bought  and  paid  for  quite  adequately, 
and  the  notion  of  some  further  charge,  or  surcharge  in  the  form  of  a 
royalty  or  licensing  payment,  I  think,  would  be  excessive. 

Mr.  Low.  I  believe  Mr.  McKenna  has  some  additional  examples. 

Mr.  McKenna.  Mr.  McDonald  mentioned  professional  societies.  I  am 
aware  of  subsidies  that  have  been  paid  by  the  National  Science  Founda- 
tion to  a  commercial  publisher  to  acquire  cold  typesetting  equipment, 
so  that  he  has  been  able  to  establish  a  relatively  large  printing  plant,  on 
the  basis  that  his  publications  were  of  national  interest,  covered 
translations  of  Soviet  periodicals. 

Mr.  Pattison.  I  see.  The  other  item  that  I  think  will  be  examined 
by  us  further  is  that  by  other  testimony  I  know  that  in  the  Willia7ns 
&  WilMns  case,  that  firm  has  developed  statistics,  demonstrating — 
to  the  extent  it  can  be  demonstrated,  it  is  obviously  so  full  of  other 
factors  that  it  is  difficult  to  demonstrate — demonstrating  a  loss  of 
subscriptions. 

That  is  a  point  of  dispute,  whether  they  lose,  or  don't  lose.  But  if 
in  fact  the  publishers  were  convinced  that  they  didn't  lose,  and  if 
in  fact  they  were  convinced  that  they  increased  their  subscriptions, 
we  wouldn't  be  having  this  discussion  right  now.  So,  I  think  that 
probably  is  a  point  of  dispute  and  something  I  would  like  to  hear 
some  more  about. 

Mrs.  Adams.  May  I  speak  to  that,  sir  ? 

Mr.  Pattison.  Certainly. 

Mrs.  Adams.  I  am  a  medical  librarian.  We  were  very  much  in- 
volved in  this  suit.  If  you  notice  the  rate  of  increased  numbers  of 
subcriptions  from  the  early  1960's  up  to,  say,  1969  or  1970,  this  is 
during  the  period,  as  was  mentioned,  when  the  rapid,  efficient  repro- 
duction of  materials  became  available,  you  will  see  that  there  was  a 
constant  rise  in  the  number  of  subscriptions  that  were  taken  by  pub- 
lishers, including  Williams  &  Wilkins. 


198 

So,  from  the  period,  say,  of  the  late  1960's  to  now,  there  has  been 
a  definite  decline.  My  own  library  has  had  to  cut  back  on  subscrip- 
tions, and  that  has  nothmg  to  do  with  the  photocopies,  it  is  simply 
a  reality  of  frozen  budgets  within  universities,  and  having  to  examine 
highly  specialized  journals ;  it  has  nothing  to  do  with  photocopying. 

Our  i3liotocopying  has  increased  because  of  our  involvement  with 
the  regional  medical  library  program.  That  supplies  copies  of  highly 
specialized  articles  to  physicians  and  health  professionals  in  rural 
areas,  some  50  to  150  miles  from  us,  and  we  supplied  over  600  items 
in  just  1  year.  There  is  no  way  that  they  could,  in  their  small  hos- 
pital libraries,  have  such  collections. 

But  the  answer  goes  back  to,  there  is  a  correlation  between  decreas- 
ing amounts  of  money  available  to  education  and  research,  and  the 
decrease  in  number  of  subscriptions.  We  don't  find  that  relates  to 
photocopies. 

Mr.  Danielson.  Which  of  course  demonstrates  the  difficulty  of  the 
problem.  If  you  convince  the  publishers  of  that,  we  will  have  no 
I)roblem. 

Mrs.  Adams.  We  have  been  trying. 

Mr.  Marke.  You  may  recall  that  the  Court  of  Claims  actually  stated 
in  its  opinion  that  there  was  inadequate  reason  to  believe  that  it — ^the 
publisher — was  being  harmed  specifically 

Mr.  Pattison.  I'm  aware  of  that  holding.  The  figures  that  have  been 
developed  by  Williams  &  Wilkins  are  quite  extensive,  since  that  time. 

Mr.  Low.  I  wanted  to  say,  in  regard  to  saying  the  publishers  felt 
they  would  be  for  the  copying  if  they  felt  it  would  increase  their 
publications,  I  feel  that  the  copying  now  is  not  affecting  the  number 
of  subscriptions,  and  I  think  they  pretty  much  realize  that  too. 

I  think  they  are  concerned  about  what  may  come  in  the  future — ■ 
without  putting  words  in  their  mouths — ^but  we  found  that  in  discus- 
sion with  them.  Here  it  has  been  now  over  60  years  since  we  have  had 
a  copyright  law;  they  see  systems  increasing,  networks  being  estab- 
lished  

Mr.  Danielson.  I  would  like  to  urge  that  we  conclude  expedi- 
tiously, we  have  four  more  witnesses.  I  don't  want  to  cut  you  off,  but 
could  you  make  your  answers  as  precise  as  possible  ? 

Mr.'  Pattison.  I  think  I  miderstand  that  problem.  I  think  I  can 
understand,  and  I  am  sure  you  can,  too,  some  of  the  concerns  the 
publishers  may  have.  If  in  fact  people  do  decide  that  there  is  no  pro* 
tection  at  all,  then  all  the  lawyers  in  the  town  can  get  together,  for 
instance,  and  subscribe  to  the  lejral  journals  and  iust  send  them  around. 
I'm  not  saying  that  lawyers  could  ever  agree  to  that,  they  can't 
agree  on  anything,  but  that  kind  of  thing  could  happen.  I  suppose 
that  is  the  answer,  the  prospective  problem  is  worse  than  the  current 
one. 

Mr.  Marke.  I'm  sorry,  just  in  this  context,  there  is  also  an  obliga- 
tion on  the  publishers,  perhaps,  to  change  their  practices,  they  haven't 
been  changed  since  Gutenberg.  They  ought  to  look  into  this  area  and 
see  what  they  can  provide  in  the  way  of  services,  which  would  increase 
their  profit  as  well.  We  want  to  cooperate  with  them,  we  want  to  give 
them  every  opportunity  to  make  a  profit. 

Mr.  Pattisoist.  That  is  a  very  good  point. 


199 

Mr.  Danielson.  Will  someone  give  me  a  very  concise  definition  of 
"page  charges",  what  are  they,  and  who  pays  them  to  whom  ? 

Mrs.  Adams.  Authors  pay  publishers  of  scientific  and  technical  jour- 
nals. These  charges  are  based  on  the  length  of  the  article. 

Mr.  Daneelson.  In  other  words,  if  I  have  written  a  scintillating 
article  on  something  I  must  pay  the  publisher  to  have  it  published. 

Mrs.  Adams.  That's  right. 

Mr.  Danielson.  Thank  you. 

Thank  you,  ladies  and  gentlemen  for  a  very  informative  discussion 
here.  We  will  move  along  rather  quickly  because  we  have  four  more 
witnesses  who  will,  I  know,  help  us  solve  tliis  simple  little  problem. 

[The  prepared  statement  of  Edmon  Low  is  as  follows :] 

Statement  of  Edmon  Low,  Representing  American  Association  of  Law  Li- 
braries, American  Library  Association,  Association  of  Research  Libraries, 
Medical  Library  Association,  Music  Library  Association,  Special  Libraries 
Association 

I  am  Edmon  Low,  Director  of  the  Library  of  New  College,  Sarasota,  Florida. 
Today  I  will  present  the  views  of  the  American  library  community  as  represented 
through  six  major  library  associations.  With  me  are  representatives  of  each 
of  the  six  associations,  and  three  attorneys.  These  individuals  are  here  to 
answer  questions  of  particular  concern  to  the  members  of  their  associations, 
if  Members  of  the  Subcommittee  so  desire. 

I  am  happy  to  introduce  them  to  the  Subcommittee  at  this  time.  The  in- 
dividuals at  the  witness  table  are  from  my  right  (the  Committee's  left), 
American  Association  of  Law  Librarians,  Julius  J.  Marke,  Chairman  of  the 
AALL  Copyright  Committee;  Association  of  Research  Libraries,  John  P.  Mc- 
Donald, Executive  Director.  Sitting  behind  Mr.  McDonald  is  the  ARL  counsel, 
Philip  B.  Brown  of  the  law  firm  Cox,  Langford,  and  Brown,  Washington,  D.C. ; 
American  Library  Association — I  am  representing  ALA  as  Chairman  of  its  Copy- 
right Subcommittee,  as  well  as  presenting  the  unified  testimony.  Sitting  behind 
me  is  the  ALA  counsel,  William  D.  North  of  Kirkland  and  Ellis  law  firm  in 
Chicago  ;  Medical  Library  Association — Mrs.  Joan  Titley  Adams,  Chairman  of  the 
MLA  Copyright  Committee;  Music  Library  Association,  Mrs.  Susan  Sommer,  a 
member  of  the  Association's  Board  of  Directors  and  Chairman  of  its  Copyright 
Subcommittee ;  Special  Libraries  Association — Dr.  Frank  E.  McKenna,  Execu- 
tive Director.  Sitting  behind  Dr.  McKenna  is  James  A.  Sharaf,  Counsel  of  the 
Harvard  University  Library. 

We  are  here  today  to  talk  about  library  copying  and  the  provisions  of  the 
copyright  revision  bill  (H.R.  2223).  Because  our  time  for  presentation  of  testi- 
mony is  very  limited,  I  shall  be  presenting  so  far  as  I  am  able  in  the  time  allotted 
the  concerns  of  all  these  various  groups.  However,  each  of  these  organizations 
will  also  be  filing  a  statement  of  its  own  setting  forth  in  greater  detail  its  indi- 
vidual concerns  about  provisions  of  the  bill,  and  all  of  these  representatives  will 
assist  me  in  answering  particular  questions  you  may  have  concerning  our  tes- 
timony and  the  issues  raised.  Although  our  testimony  today  is  limited  to  library 
photocopying  which  is  the  subject  of  this  hearing,  there  are  other  provisions  of 
the  bill  which  concern  us  and  about  which  we  may  be  making  further  statements 
as  other  hearings  are  scheduled. 

I  would  like  first  to  point  out  that,  although  this  copyright  revision  bill  has 
been  under  consideration  for  ten  years,  the  library  photocopying  issue  is  still  r.n 
important  unresolved  subject.  In  brief,  the  question  which  Congress  must  decide 
is  whether  libraries  wiU  be  permitted — at  no  additional  expense — to  continue 
to  serve  the  public  by  the  long-standing  practice  of  providing  single  copies  of 
copyrighted  material  for  a  user's  research  or  study.  It  is  an  issue  with  direct  and 
widespread  impact  on  the  general  public.  It  involves  both  the  right  of  access  to 
library  materials  and  the  cost  of  that  access. 

In  the  past  year  there  have  been  two  major  developments  affecting  this  ques- 
tion. In  the  first  case  ever  brought  by  a  publisher,  the  Williams  &  Wilkins  Com- 
pany, the  courts  have  upheld  the  photocopying  of  single  copies  of  copyrighted 
medical  journal  articles  as  being  within  the  doctrine  of  fair  use  and  not  consti- 


200 

tuting  infringement  of  copyriglit.  It  is  in  part  because  this  case  consumed  seven 
years  and  major  financial  outlay  that  libraries  are  concerned  about  the  second 
major  development,  which  is  the  introduction  last  year  into  the  Senate  bill, 
without  any  hearing,  of  a  new  and  undefined  limitation  on  the  rights  of  libraries, 
namely,  the  concept  of  "systematic  reproduction"  of  either  single  or  multiple 
copies  of  copyrighted  material. 

Now,  when  we  talk  about  library  copying  we  are  not  talking  about  something 
for  the  benefit  of  libraries  or  librarians,  we  are  talking  about  something  that 
is  carried  on  for  the  benefit  of  users  of  libraries  who  include  citizens  from  all 
walks  of  life  throughout  the  country.  When  we  talk  about  library  copying  prac- 
tices, we  are  talking  about  the  schoolboy  in  Caliiornia  who  may  need  a  copy 
of  an  article  in  the  Los  Angeles  Times  for  a  project  he  is  working  on  in  his 
ninth-grade  class ;  we  are  talking  about  a  judge  in  a  county  court  in  Middlesex 
County,  Massachusetts,  who  may  find  he  needs  a  copy  of  a  law  review  article 
which"  bears  directly  upon  a  difficult  question  of  law  which  has  arisen  in  the 
course  of  his  work ;  we  are  talking  about  a  doctor  in  downstate  Illinois  who 
has  a  patient  with  an  unusual  and  rare  disease  and  the  only  recent  material  to 
be  found  is  contained  in  an  obscure  journal  published  in  Sweden  and  available 
only  through  the  Regional  Medical  Library  System,  but  which  article  may  aid 
hiiu  in  saving  his  patient's  life ;  we  are  talking  about  a  Member  of  this  Com- 
mittee asking  the  Congressional  Reference  Service  of  the  Library  of  Congress 
for  an  article  dealing  with  copyright ;  and  we  are  talking  about  a  musician  who 
is  preparing  a  scholarly  article  on  the  music  of  Mozart  and  needs  to  take  with 
him  to  his  study  a  copy  of  a  portion  of  a  recently  edited  score  of  one  of  Mozart's 
works  with  which  he  is  concerned.  The  list  is  endless,  but  I  wish  to  emphasize 
that  we  are  talking  about  an  issue  that  very  broadly  afiiects  the  ability  of  people 
in  this  country  to  make  use  of  their  libraries  which  are  the  repository  and  store- 
house of  man's  knowledge. 

It  should  be  noted  here  that  copyright  is  not  a  constitutional  right,  such  as 
trial  by  jury  of  one's  peers.  The  Constitution  simply  authorizes  Congi-ess  to 
create  the  right.  It  is  therefore  a  statutory  right — one  created  by  law- — and  may 
be  changed,  enlai'ged,  narrowed,  or  abolished  altogether  by  the  Congress  here 
assembled.  It  is  a  law  enacted  not  for  the  benefit  of  an  individual  or  a  corpor- 
ation but  for  the  public  good  and  with  the  purpose,  as  the  Constitution  expresses 
it,  "to  promote  the  progress  of  science  and  useful  arts."  Consequently,  in  revis- 
ing the  copyright  law  the  problem  for  Congress  is  to  design  provisions  which 
both  encourage  the  creation  of  original  works  and  permit  the  widest  possible 
access  to  and  dissemination  of  information  to  the  public ;  and,  where  these  goals 
compete,  to  strike  a  balance  which  best  serves  the  fundamental  objective  of 
promoting  learning,  scholarship,  and  the  arts. 

It  is  now  generally  understood  that  a  single  collection  of  books  or  other  re- 
corded forms  of  thought  as  represented  by  any  library  can  contain  only  a  fraction 
of  the  total  amount  of  material  in  existence.  Even  the  Library  of  Congress,  pos- 
sibly the  largest  single  collection  of  materials  in  the  world,  does  not  have  many 
thousands  of  titles  which  exist  in  the  United  States,  to  say  nothing  of  those  else- 
where in  the  world,  while  on  the  other  hand  even  a  relatively  small  library  will 
often  have  titles  not  found  anywhere  else  in  the  country.  The  location  and  cata- 
loging of  these  titles,  and  of  articles  and  journals,  and  the  making  of  some  avail- 
able readily  through  photocopying  or  loan — the  dissemination  of  knowledge — is 
indispensable  to  education  and  research  and  often  involves  the  re])rodnction  by 
photocopying  of  a  portion  of  a  monograph  or  a  journal  article  protected  by  copy- 
right. 

Library  photocopying  may  be  roughly  divided  into  two  groups,  the  first  being 
that  done  either  by  a  member  of  a  library  staff  or  by  the  user  himself  from 
material  in  the  library  for  immediate  use  on  the  premises  or  nearby ;  the  second. 
th.Tt  done  by  one  library  for  and  at  the  request  of  another  library,  often  some 
distance  away,  for  use  by  one  of  its  patrons  there.  The  first  is  oft^n  designated 
"in-bouse''  copying,  while  the  second  we  usually  refer  to  as  "'interlibrary  loan." 
The  first  is  often  necessary  if  a  patron  is  to  compare  and  study  several'articles 
from  large  bound  reference  volumes  as  for  instance  a  student  writins  a  term 
paper  in  the  lilu-ary.  The  second  is  of  vital  impoi-tance  in  that  the  scholar  or 
other  user  does  not  have  the  document  in  hand  and  therefore  it  is  his  only  prac- 
tical access  to  what  may  be  highly  important  material  for  information  or  re- 
search. 

At  present  I  am  Director  of  the  New  College  Library  at  Sarasota,  Florida.  New 
College  is  a  small,  but  very  fine,  frivate  college  and  its  problems  in  this  con- 


201 

nectioD  are  typical  of  the  two  thousand  small  and  medium-sized  colleges  through- 
out the  country.  While  our  library  is  liberally  supported  and  spends  every  cent 
it  can  afford  on  periodical  subscriptions,  we  cannot  possibly  have  the  large  re- 
sources of  a  university  like  the  one  at  Gainesville  or  at  Tallahassee.  Yet  our 
faculty  members,  if  they  maintain  a  good  quality  of  teaching  and  do  the  research 
which  contributes  to  it,  must  have  access  by  random  photocopying  at  times  to 
the  larger  collections  in  the  state  and  elsewhere. 

It  is  usually  not  known  that  the  interlibrary  loan  arrangement  often  encour- 
ages the  entering  of  additional  subscriptions  by  the  library  rather  than  reducing 
the  number  as  is  often  charged.  It  is  a  truism  that  a  librarian  would  prefer  to 
have  a  title  at  hand  rather  than  to  have  to  borrow  even  under  the  most  con- 
venient circumstances.  Consequently,  when  the  time  comes  around  each  year  to 
consider  the  list  of  periodical  subscriptions,  the  record  of  interlibrary  loans  is 
scanned  and  titles  are  included  from  v.-hich  articles  have  been  requested  with 
some  frequency  during  the  year.  While  the  situation  varies,  in  our  library  the 
number  is  two ;  if  we  have  had  two  or  more  requests  for  articles  from  the  same 
title  during  the  year,  we  enter  a  subscription.  This  not  only  indicates  how  the 
procedure  can  help  the  periodical  publishers,  but  also  indicates  that  if  only  one 
article  or  none  was  copied  from  a  title  during  a  year,  the  joiirnal  could  not  have 
been  damaged  materially  in  the  process.  It  is  not  only  the  small  schools  which 
would  suffer  if  such  photocopying  were  eliminated,  however;  the  scholars  at 
Wisconsin  or  Michigan  would  also  be  severely  put  to  it  to  continue  their  research 
in  the  same  way,  and  it  is  these  scholars  who  account  for  the  major  writing  for 
the  scholarly  journals.  The  journals  themselves,  therefore,  have  a  stake  in  seeing 
tliis  procedure  continued  in  a  i*easonable  way. 

Courts  have  long  recognized  that  some  reproduction  of  portions  of  a  copyrighted 
work  for  purposes  of  criticism,  teaching,  scholarship  or  research  is  desir- 
able and  this  judicial  concept,  known  as  "fair  use,"  is  incorporated  in  sec- 
tion 107  of  the  revision  bill.  Libraries  have  operated  all  these  years  under  this 
principle,  but  it  does  lack  the  assurance  of  freedom  of  liability  from  harassing 
suits  which  the  librarian  needs  in  his  work.  This  fair  use  concept  is  necessarily 
expressed  in  general  language  in  tJie  bill,  so  a  librarian  will  not  be  able  to  be  sure, 
until  a  court  decides  a  particular  case,  whether  his  action,  undertaken  with  the 
best  of  intentions  to  aid  a  patron,  is  or  is  not  an  infringement.  This  is  pointedly 
illustrated  by  the  recently  decided,  previously  mentioned  case  of  Williams  «& 
Wilkins  vs.  the  National  Library  of  Medicine  and  the  National  Institutes  of 
Health  for  photocopying.  This  suit  was  instituted  in  1968  and  only  now  after  years 
of  litigation  and  expenditures  of  many  thousands  of  dollars  on  each  side  has 
it  been  determined  that  the  defendants  were  properly  obeying  the  law  after  all. 
Fair  use,  then,  is  not  really  a  right  to  copy  any  given  thing,  but  only  a  defense 
to  be  invoked  if  one  is  sued.  This  threat  of  suit,  even  if  one  is  able  to  maintain 
his  innocence  in  court,  is  very  real  because  suits  are  costly  in  proportion  to  the 
amount  for  which  one  is  sued.  This  revision  bill  provides  not  only  for  demand  for 
actual  damages,  but  also  one  can  be  sued  for  statutory  damages  up  to  limit  of 
$50,000  for  each  imagined  infringement.  Thus,  harassing  but  unjustifiable  suits 
are  really  invited  by  this  bill. 

In  light  of  the  above,  we  librarians  believe  that  In  addition  to  Section  107 
delineating  fair  use,  further  protection  is  needed  to  assure  that  it  is  permissible 
to  make  a  single  copy  as  an  aid  in  teaching  and  research,  including  a  single  copy 
as  part  of  an  interlibrary  loan  transaction,  and  that  such  activity,  in  behalf  of 
the  public  good,  is  not  subject  to  possible  suit.  This  assurance  has  now  been 
largely  provided  in  parts  of  section  108  (a)  through  (f),  for  which  we  are  very 
appreciative.  However,  we  are  greatly  concerned  with  the  addition  of  subsections 
108  (g)  (1)  and  (2),  and  (h),  which  take  back  the  very  rights  set  forth  in  108 
(a)  through  (f).  These  are  provisions  which  came  into  the  bill  in  the  Senate 
after  hearings  were  concluded  in  1973,  without  the  opportunity  for  discussion  by 
library  representatives  with  Senator  McClellan's  Subcommittee.  Today's  hearings 
are  the  first  opportunity  we  have  had  to  express  publicly  our  very  deep  concern. 
Before  discussing  subsections  (g)  and  (h),  I  would  like  to  note  tliere  is  also  a 
particular  problem  in  the  interpretation  of  section  108(a)  which  can  affect 
specialized  libraries  in  business,  industry,  and  commerce.  This  is  discussed  in  the 
individual  statement  of  the  Special  Libraries  Association. 

Subsection  (g)  (1)  gives  us  concern  because  often  there  is  no  basis  for  a  library 
employee  to  judge  whether  a  request  for  a  copy  represents  "isolated  and  unrelated 
reproduction"  as  specified  in  sec.  108(g)(1).  For  example,  if  a  college  in- 
structor in  a  graduate  seminar  in  Englisli  were  to  recommend  to  his  students, 

57-786— 76— pt.  1 14 


202 

some  ten  men  and  women  sitting  around  a  table,  that  they  read  an  article  on 
Milton's  poetry  that  appeared  ten  years  ago  in  Publications  of  the  Modern 
Language  Association,  and  if  two  of  them  over  the  next  week  were  to  go  to  that 
college's  library  and  look  at  that  article  and  decide  that  they  wanted  to  take 
copies  back  to  their  dormitory  for  further  study,  we  don't  see  how  there  is  any 
practical  way  in  which  a  library  can  prevent  that  kind  of  reproduction  of  a  single 
copy  on  separate  occasions,  and  we  don't  think  they  should  have  to.  And  yet,  the 
Senate  Committee  report  on  S.  1361   (S.  Rept.  93-983)   cites  such  an  instance. 

Section  108(g)  (2)  says  that  the  rights  of  reproduction  and  distribution  do  not 
extend  to  a  library  which  "engages  in  the  systematic  reproduction  or  distribution 
of  single  or  multiple  copies  or  phonorecords  of  material  described  in  subsection 
(d)."  The  materials  referred  to  in  (d)  are  journal  articles  or  small  portions  of 
other  copyrighted  works. 

The  question  immediately  arises  as  to  what  constitutes  systematic  reproduc- 
tion. To  the  extent  that  we  are  able  to  puzzle  it  out,  it  appears  to  have  been 
aimed  at  practices  of  the  kind  which  were  upheld  as  fair  use  by  the  Court  of 
Claims  in  the  Williams  d  Wilkins  case.  In  listening  to  my  publisher  and  author 
friends,  the  preeminent  example  which  they  give  of  systematic  reproduction  has 
always  been  the  Regional  Medical  Library  System,  with  the  National  Library  of 
Medicine  at  its  apex.  Those  practices  of  the  National  Library  of  Medicine  were, 
of  course,  upheld  by  the  Court  of  Claims  in  Williams  d  Wilkins  in  a  decision 
which  was  affirmed  this  year  by  the  United  States  Supreme  Court. 

Now,  how  does  the  Regional  Medical  Library  system  really  work?  Well,  it 
starts  oft  with  the  user,  who  discovers  that  he  needs  access  to  some  particular 
information,  often  found  in  an  article  in  a  professional  journal  in  the  biomedical 
field.  He  usually  starts  off  by  going  to  the  library  in  the  hospital  with  which  his 
practice  is  affiliated,  and  may  find  it  there.  If  it  is  one  of  the  most  important 
journals,  the  hospital  may  well  have  it.  But,  since  there  are  thousands  of  journals 
in  the  medical  and  health  sciences  field,  the  chances  are  that  the  hospital  library 
may  not  have  this,  particularly  if  it  is  older  material.  The  request  would  then  go 
to  one  of  the  eleven  Regional  Medical  Libraries  over  the  country  which  are  sup- 
ported by  Congress,  and  from  there  as  a  last  resort  to  the  top  of  the  pyramid 
which  is  the  National  Library  of  Medicine  and  which  now  has  over  25,000  differ- 
ent journals,  the  biggest  medical  collection  in  the  world.  It  is  obviously  not  pos- 
sible for  the  smaller  hospital  library,  or  sometimes  even  the  Regional  Medical 
Library,  to  have  a  sizable  portion  of  this  vast  amount  of  material,  so  some  kind  of 
access,  such  as  photocopying,  must  be  relied  upon  to  get  the  information  to  the 
doctor  or  the  other  health  professional  when  urgently  needed.  This  kind  of  orga- 
nization of  access  to  scientific  and  technical  knowledge  seems  to  us  to  be  the 
intelligent  way  of  doing  things.  It  should  be  noted  also  that  the  Regional  Medi- 
cal Libraries  are  not  only  striving  to  augment  their  collections  as  rapidly  as 
possible  but  likewise  are  urging  the  smaller  hospital  libraries  to  upgrade  theirs, 
thus  providing  all  along  the  line  an  ever-increasing  number  of  subscriptions 
with  accompanying  increased  financial  gain  for  the  publishers.  Mrs.  Joan  Titley 
Adams,  of  the  Medical  Library  Association,  who  is  with  us  here  today,  can  pro- 
vide for  any  of  the  Committee  members  who  are  interested  further  details  about 
this  highly  significant  work  in  the  medical  and  health  fields. 

Another  large  and  highly  important  type  of  system  for  which  this  systematic 
reproduction  poses  problems  is  that  of  the  county  and  multi-county  library  sys- 
tems throughout  the  whole  country.  These  libraries  came  into  being  largely 
through  the  opportunity  provided  by  the  federal  Library  Services  and  Construc- 
tion Act.  This  was  and  still  is  an  effort  to  bring  books  and  other  library  materials 
to  the  millions  of  people,  often  in  rural  areas,  who  had  not  heretofore  had  library 
service  available.  To  get  counties  to  join  together,  vote  the  necessary  taxes,  agree 
on  a  common  governing  board,  and  gain  consensus  on  the  sites  for  a  central  li- 
brary and  for  the  smaller  satellite  libraries  in  the  system  is  a  diflScult  task.  It  is 
often  made  possible  only  by  the  promise  to  the  citizens  of  much  broader  areas  of 
information  which  will  be  made  available  to  them  not  only  from  their  small  but 
growing  collection  in  each  neighborhood,  but  also  through  loans  from  the  central 
library  and  through  it  from  larger  collections  elsewhere.  In  this,  some  copying  of 
periodical  articles  is  occasionally  involved,  but  it  does  not  result  in  fewer  sub- 
scriptions— in  fact,  before  the  founding  of  many  of  these  libraries  there  were  no 
periodical  subscriptions  at  all  in  the  area. 

Because  interlibrary  loan  is  one  of  the  vital  elements  in  this  concept  which 
has  been  so  mutually  beneficial  to  all,  it  is  urgent  that  no  restrictions  be  imposed 


203 

which  would  diminish  the  effectiveness  of  the  program.  Such  a  diminution,  if 
it  occurred,  would  be  as  much  against  the  interest  of  the  publishers  as  against  the 
citizens  the  libraries  serve.  Let  me  give  you  an  illustration  from  my  home  state  of 
Oklahoma  which  I  know  well.  A  few  years  ago,  the  Western  Plains  Library 
System  was  established  consisting  of  four  counties  in  Western  Oklahoma.  At  the 
time  of  its  organization,  there  was  a  single  library  in  each  of  two  counties.  The 
other  two  had  no  libraries.  Now  there  are  seven  libraries  in  the  four  counties 
and  two  bookmobiles  are  operating  regularly.  At  the  beginning  the  two  original 
libraries  subscribed  to  20  periodicals  between  them.  The  seven  libraries  now 
subscribe  to  over  300.  The  combined  annual  book  budget  of  the  two  original 
libraries  was  under  $2500.  The  annual  book  budget  for  the  seven  is  now  $42,000. 
In  addition,  they  have  encouraged  school  libraries  to  develop  collections  of  peri- 
odicals and  books  and  are  now  promoting  with  success  the  creation  of  home  col- 
lections of  books  and  periodicals.  This  tremendous  increase  in  acquisition  of 
materials  has  obviously  benefited  the  publishers  of  materials  as  well  as  the 
citizens  the  libraries  serve. 

This  kind  of  multi-county  library  is  now  found  in  every  State  in  the  Union, 
and  over  the  two  decades  the  Library  Services  and  Construction  Act  has  been  in 
existence  millions  of  dollars  of  federal  money  and  matching  local  funds  have 
been  expended  for  this  kind  of  service.  The  importance  of  this  activity  was 
recognized  in  the  Senate  report  last  summer  accompanying  S.  1361  (S.  Rept. 
93-9S3)  in  the  portion  discussing  systematic  reproduction  by  saying,  "The  photo- 
copying needs  of  such  operations  as  multi-county  regional  systems  must  be  met," 
but'  no  provision  was  made  in  the  law  to  specifically  provide  for  these  needs. 
Section  108(g)  (2)  would  prohibit  their  copying  activity  and  do  much  mischief 
indeed. 

It  was  also  pointed  out  to  our  publisher  friends  that  many  systems  are  not 
organized  for  the  purpose  of  copying  materials  of  any  kind.  For  example,  one  of 
the  large  "systems"  is  SOLINET,  an  acronym  for  Southeastern  Library  Net- 
work. This  is  a  group  of  about  100  libraries  in  the  Southeastern  States  devoted 
solely  to  providing  centralized  cataloging  and  catalog  card  preparation  and  dis- 
tribution to  member  libraries.  Other  systems  have  the  purpose  of  encouraging 
the  building  of  better  library  collections  and  the  bringing  to  the  area  more  jour- 
nals, sets  and  bibliographies  not  now  represented  in  the  areas.  To  say  that  a 
library  merely  because  it  happens  to  belong  to  such  a  "system"  is  prohibited 
from  photocopying  where  if  it  did  not  belong,  it  would  be  permitted  to  do  so, 
seems  to  us  farfetched  indeed. 

We  are  also  concerned  with  section  108(h)  which  would  limit  the  rights  other- 
wise granted  under  section  108  by  excluding  a  musical  work,  pictorial,  graphic 
and  other  audiovisual  works.  These  exclusions  are  illogical.  The  need  of  the 
scholar  doing  research  in  music  for  a  copy  of  a  portion  of  a  score  is  as  legitimate 
and  proper  as  that  of  the  scholar  doing  any  other  kind  of  research.  Likewise,  the 
copying  of  one  map  from  an  atlas  or  a  page  of  diagrams  and  plans  from  a  tech- 
nical journal  may  be  just  as  important  as  any  other  kind  of  material  for 
research. 

It  seems  to  us  that  libraries  ought  to  be  encouraged  to  collect  and  preserve  all 
of  the  forms  in  which  knowledge  is  published  and  distributed,  and  that  it  should 
be  possible  for  users  of  libraries  to  have  access  for  their  study  and  scholarship 
to  all  of  these  forms,  not  just  some  of  them.  If  a  student  of  the  cinema  asks  a 
library  to  make  a  copy  for  him  of  a  few  selected  frames  of  some  famous  motion 
picture  which  is  being  studied,  so  that  he  may  consider  at  his  leisure  a  certain 
key  point  which  is  made  in  an  article  he  is  reading,  we  think  the  library  ought  to 
be  able  to  do  that. 

Mrs.  Susan  Sommer  of  the  Music  Library  Association  is  with  us  today  and 
can  provide  further  information  about  the  problems  posed  by  this  section  of  the 
bill  in  relation  to  music.  Dr.  Frank  McKenna,  of  the  Special  Libraries  Associa- 
tion, is  also  here  and  can  discuss  the  problems  in  relation  to  atlas  or  other  graphic 
materials  in  books  and  periodicals. 

In  reporting  S.  1361  last  July,  the  Senate  Judiciary  Committee  recommended 
that  "representatives  of  authors,  book,  and  periodical  publishers  and  other  owners 
of  coprighted  material  meet  with  the  library  community  to  formulate  photo- 
copying guidelines  to  assist  library  patrons  and  employees."  And  concerning 
library  photocopying  practices  not  authorized  by  the  reported  bill,  the  Committee 
recommended  "that  workable  clearance  and  licensing  procedures  be  developed." 

In  response  to  this  request  by  the  Senate  Judiciary  Committee,  representatives 


204 

of  the  different  views  on  this  subject  were  convened  in  November  1974  by  invita- 
tion of  the  Register  of  Coyprights  and  the  Chairman  of  the  National  Commission 
on  Libraries  and  Information  Science.  The  resulting  "Conference  on  Resolution  of 
Copyright  Issues"  established  a  smaller  working  group  to  carry  out  preliminary 
discussions.  The  working  group  and  several  subcommittees  have  since  met  on 
frequent  occasions  to  consider  and  prepare  papers  on  a  variety  of  technical  and 
procedural  matters. 

There  are,  of  course,  different  views  of  the  significance  of  the  work  performed 
to  date  by  the  Conference  and  its  working  group.  The  work  has  focused  upon  the 
mechanics  and  the  feasibility  of  possible  mechanisms  for  collecting  payments 
for  photocopying  of  copyrighted  materials.  It  must  be  emphasized,  however,  that 
there  has  been  no  agreement  as  to  whether  such  a  payment  mechanism  is  accepta- 
ble to  libraries  even  if  it  is  workable,  and  also  I  may  say  no  seemingly  workable 
mechanism  has  yet  been  advanced  in  that  it  still  appears  it  would  take  dollars 
to  collect  dimes.  There  has  also  been  no  agreement  as  to  the  categories  of  pub- 
lications to  which  such  a  mechanism  should  be  applied  and  no  change  in  the  posi- 
tion of  libraries  that  their  current  photocopying  practices  are  entirely  lawful  and 
within  the  fair  use  holding  of  the  Williams  &  Wilkins  case,  and  should  not  in  any 
respect  be  treated  as  infringing  rights  of  the  copyright  proprietor  in  the  provisions 
of  any  new  legislation. 

The  publishers  will  probably  tell  you  that  they,  too,  are  for  photocopying  but 
they  want  money  for  it  without  any  outlay  or  trouble  on  their  part.  I  should  like 
to  point  out  some  reasons  why  licensing  and  payment  of  royalties  by  libraries  for 
the  photocopying  they  do  is  not  justified.  First,  many  publishers  already  have 
variable  pricing  for  journals ;  that  is,  they  charge  a  considerably  higher  price 
for  the  same  journal  for  a  library  subscription  than  for  an  individual  subscription. 
These  prices  to  libraries  often  run  quite  high — subscriptions  of  $100  to  $300  per 
year  are  not  uncommon ;  a  few  run  $1,000  or  more ;  and  the  $50  to  $100  price  is 
quite  commonplace  in  the  scientific  field.  These  higher  subscription  prices  to 
libraries  presumably  are  designed  in  many  cases  to  include  charges  for  antici- 
pated copying.  ,Some  journal  publishers  have  received  substantial  federal  assist- 
ance in  modernizing  their  editorial  and  manufacturing  procedures.  Other  journals, 
and  also  some  of  those  just  mentioned,  have  already  had  major  contributions  of 
public  funds  in  the  nature  of  per-page  charges,  usually  in  the  range  of  $50  to 
$100  per  printed  page  paid  by  the  author  or  by  a  federal  grant  which  is  financing 
his  work.  The  author  is  usually  not  paid  by  the  publisher  for  his  work  in  writing 
the  article  but  the  library  or  the  institution  where  the  author  is  located  often 
spends  a  sizable  amount  for  interlibrary  loan  postage  and  handling  to  aid  him  in 
preparation  of  his  article  which  the  periodical  then  receives  without  cost.  As  an 
example,  my  own  small  library  spent  during  this  past  year  over  $100  on  inter- 
library  loan  expense  for  books  to  enable  a  professor  to  write  an  article  for  an 
historical  journal,  but  the  journal  did  not  pay  him  anything  for  the  article. 

In  light  of  these  contributions  which  the  libraries  and  the  public  already 
make  to  the  publication  of  these  works,  it  seems  unreasonable  for  journal 
publishers  to  demand  still  further  payment  from  libraries,  and  eventually  the 
public,  for  the  occasional  photocopying  of  individual  articles  for  library  users. 
It  seems  even  more  unreasonable  in  view  of  the  fact  that  by  making  the  infor- 
mation concerned  available  to  those  with  current,  specific  needs  for  it.  library 
photocopying  fosters  the  basic  purpose  of  the  authors  of  such  articles.  But  when 
it  is  also  noted  that  there  is  no  evidence  that  the  libraries'  policies  have  caused 
publishers  any  harm  whatsoever  and  may  actually  increase  their  subscriptions, 
it  is  clear  that  such  demands  are  completely  unjustified  and  the  public  interest 
requires  that  they  be  rejected  by  Congress. 

For  the  reasons  we  have  advanced  above,  we  urge  that  sections  108(g)  (1) 
and  (2)  and  (h)  be  deleted  from  the  bill.  This  would  also  be  in  accord  with  the 
Williams  &  Wilkins  decision  and  would  permit  libraries  to  continue  the  long 
established  library  service  of  providing  a  single  photocopy  of  a  single  article 
or  excerpt  from  a  copyrighted  periodical  or  book  for  a  patron's  use  without 
incurring  liability  for  copyright  royalties. 

It  has  been  a  pleasure  to  appear  before  you  today,  Mr.  Chairman,  and  I  assure 
you  that  we  are  ready  to  be  of  assistance  in  any  way  we  can  toward  a  satisfactory 
resolution  of  this  very  difficult  but  important  problem. 

[The  following  prepared  statements  and  correspondence  were  re- 
ceived for  the  record :] 


205 

Statemea^t  of  John  P.  McDonald,  Executive  Director,  Association  of 

Research  Libraries 

The  Association  of  Research  Libraries,  an  organization  of  the  principal  uni- 
versity and  research  libraries  in  the  country,  believes  that  the  copyright  revision 
liill  ultimately  approved  by  the  Courts,  Civil  Liberties  and  the  Administration 
of  Justice  Subcommittee  must  include  provisions  which  will  ensure  that  the 
customary,  long-established  library  service  of  providing  a  single  photocopy  of  a 
single  article  or  excerpt  from  a  copyrighted  periodical  or  book  for  a  patron's 
private  use  may  be  continued  without  incurring  liability  for  copyright  royalties. 

The  bill  adopted  by  the  Senate  last  year,  and  reintroduced  in  the  94th  Con- 
gress as  H.R.  2223,  gives  explicit  recognition  to  and  protection  for  library  photo- 
copying. However,  that  bill  also  incorporates  provisions  in  Section  108 (g)  which 
encumber  and  confuse  the  expressly  recognized  right  to  an  extent  that  would 
severely  hamper  libraries'  service  to  the  public  and  exclude  practices  which  are 
presently  lawful.  It  is  imperative  that  the  bill  be  amended  to  restore  to  libraries 
and  the  public  the  rights  which  they  presently  enjoy  to  make  limited  photocopies 
of  copyrighted  works.  Section  108(g)  (2)  should  be  removed  from  the  bill  because  : 
1.  It  restricts  practices  which  are  reasonable,  customary  and  lawful  under  the 
decision  in  the  Williams  &  Wilkins  case.  2.  Copyright  owners  {e.g.,  publishers) 
have  advanced  no  evidence  showing  that  such  practices  in  any  way  injure  their 
economic  interests,  much  less  evidence  that  it  is  in  the  public  interest  to  forbid 
them.  3.  The  cost  of  the  libraries  and  ultimately  the  public  of  prohibiting  or 
imposing  a  royalty  requirement  upon  such  practices  will  be  extremely  high. 
4.  The  primary  purpose  of  the  authors  of  the  sorts  of  articles  most  frequently 
copied  is  to  disseminate  the  results  of  their  research,  not  to  earn  royalties. 

At  issue  is  the  making,  whether  at  the  request  of  a  patron  or  at  the  request 
of  another  library,  of  single  copies  of  copyrighted  matter  for  the  private  use  of 
a  scholar  or  other  reader.  Such  copies  may  be  of  articles  from  law  reviews,  medi- 
cal journals  or  scientific  or  technical  periodicals,  or  they  may  be  passages  from 
other  published  works.  They  are  made  in  response  to  individual  requests  for 
single  copies,  although  more  than  one  individual  may  request  a  copy  of  a  par- 
ticular part  of  a  work  in  a  library's  collection.  In  providing  this  service,  a  library 
may  make  a  copy  from  a  work  located  on  its  premises,  or  in  the  case  of  a  work 
not  in  its  own  collection,  it  may  request  the  copy  from  another  library,  just  as 
it  might  obtain  the  original  work  itself  on  an  inter-library  loan  for  a  patron  who 
wished  to  borrow  it.  The  right  to  make  a  single  copy  for  personal  use  is  im- 
portant to  a  wide  variety  of  scholars  and  other  library  users,  from  the  high 
school  student  who  wants  a  copy  of  an  article  in  a  issue  of  a  magazine  for  a 
debate  or  science  project  to  the  physician  requiring  the  material  for  research 
work  or  patient  care.  In  the  overwhelming  number  of  cases  it  is  the  only  way  in 
which  a  researcher  can  obtain  a  copy  of  an  article  from  a  issue  of  a  periodical 
for  reference. 

Both  libraries  and  the  public  have  traditionally  considered  the  making  of 
such  copies  to  be  a  natural  and  necessary  part  of  libraries'  services  to  their 
users.  It  is  simply  one  way  in  which  published  material  is  made  accessible.  Such 
copies  have  been  "made  by  photographic  and  other  reprographic  techniques  since 
before  the  enactment  of  the  1909  Copyright  Act.  No  court  has  ever  held  that 
these  traditional  practices  result  in  liability  under  the  copyright  law,  and  in 
the  test  case  brought  by  publishers,  WilUatns  d  Wilkins  v.  United  States,  the 
U.S.  Court  of  Claims  held  that  the  libraries'  practices  were  a  fair  use  of  the 
pul)lished  materials.  That  holding  was  recently  affirmed  by  the  United  States 
Supreme  Court. 

It  is  vital  that  the  copyright  revision  bill  recognize  the  right  of  libraries  to 
make  single  photocopies  of  works  for  the  private  use  of  patrons  without  incur- 
ring liability  under  the  copyright  law.  Although  Williams  &  Wilkins  is  authority 
that  traditional  library  photocopying  is  within  the  doctrine  of  "fair  use",  express 
statutory  treatment  is  necessary  to  remove  the  threat  of  suit  against  libraries 
ari.sing  from  varying  judicial  interpretations  of  what  is  or  is  not  "fair  use". 
Failure  to  include  such  provisions  would  abandon  this  area  of  major  public  inter- 
est to  judicial  "legislation",  and  could  lead  to  further  costly  litigation. 

Section  108  of  H.R.  2223  extends  the  necessary  recognition,  but  limitations  writ- 
fen  into  its  provisions,  principally  in  Subsection  108(g) — and  particularly  clause 
(2)  of  that  subsection — seriously  erode  the  rights  which  it  intends  to  recognize. 

Claiiise  (g)(2)  excludes  from  the  library  photocopying  permitted  under  Sec- 
tion 108  any  instance  of  "systematic  reproduction  and  distribution".  Because  this 
restriction  was  written  into  the  bill  by  the  Senate  Patents,  Trademarks  and 


206 

Copyrights  Subcommittee  at  the  last  minute  (after  public  hearings  had  been  held) 
and  is  only  vaguely  and  confusingly  explained  in  the  committee  report,  it  is  impos- 
sible to  determine  exactly  what  it  means.  Such  cursory  explanation  of  the  limita- 
tion as  was  offered  by  publishing  interests  before  this  Subcommittee  seems  to 
confuse  it  with  "related  or  concerted"  reproduction — which  is  separately  treated 
by  Section  108(g)  (1)  of  the  bill — and  merely  disguises  the  real  import  of  the 
restriction.  It  appears,  however,  to  be  potentially  applicable  whenever  a  library 
makes  a  photocopy  of  an  article  or  other  portion  of  a  published  work  in  the  con- 
text of  a  "system".  There  are,  of  course,  many  such  systems  of  libraries,  from 
city  or  county  branch  library  systems  to  the  university  with  branch  campuses 
to  regional  library  consortia.  When  it  applies.  Section  108(g)(2)  would  reach 
the  making  of  a  single  copy  for  a  single  requester,  of  any  part,  however  small,  of 
a  copyrighted  work.  It  is  precisely  the  right  to  make  such  copies  which  Section 
108  was  intended  to  confirm. 

The  Senate  Judiciary  Committee  report  states  that  systematic  reproduction  or 
distribution  within  the  intent  of  Subsection  108(g)  (2)  occurs  "when  a  library 
makes  copies  of  such  materials  available  to  other  libraries  or  groups  of  users 
under  formal  or  informal  arrangements  whose  purpose  or  effect  is  to  have  the 
reproducing  library  serve  as  their  source  of  such  material."  An  example  which 
seems  to  fit  this  description  would  be  arrangements  under  which  the  Legislative 
Research  Service  of  the  Library  of  Congress  provides  copies  of  materials,  such 
as  articles  from  economic  or  business  periodicals,  at  the  request  of  Members  of 
Congress.  An  example  listed  by  the  Senate  committee's  report  is  the  case  in  which 
a  branch  of  a  library  system  obtains  at  a  user's  request  a  copy  of  an  article  which 
it  does  not  carry  in  its  own  collection.  The  example  most  frequently  cited  by 
publishers  is  the  regional  medical  library  system,  by  which  local  hospital  and 
medical  school  libraries  have  access  upon  request  to  seldom-read  and  highly 
specialized  periodicals  carried  by  regional  medical  libraries  or  the  National  Li- 
brary of  Medicine.  Each  of  these  examples  involves  practices  which  are  tradi- 
tional and  obviously  reasonable.  Just  such  photocopying  practices  of  the  NLM 
were  at  issue  in  the  Williams  &  Wilkins  case  and  were  held  to  be  lawful. 

The  sole  rationale  offered  for  the  new  restrictions  is  an  assertion  that  they  are 
necessary  in  order  to  prevent  present  and  potential  subscribers  from  relying  on 
library  photocopying  machines  in  the  place  of  journal  subscriptions.  That  asser- 
tion is  simply  and  clearly  not  valid.  The  argument  has  a  certain  surface  plausibil- 
ity, but  in  spite  of  the  many  opportunities  presented  to  them,  notably  in  the 
Williams  &  Wilkins  case  and  most  recently  at  the  hearings  before  this  Subcom- 
mittee, publishing  interests  have  never  offered  any  evidence  to  substantiate  their 
claims  of  damage  or  to  show  that  their  fears  for  the  future  have  any  basis  in 
fact  within  the  context  of  the  limited  library  photocopying  which  would  be  recog- 
nized under  subsections  (a)  through  (f)  of  Section  108.  In  Williams  &  Wilkins 
such  an  inference  of  injury  mistakenly  indulged  in  by  the  presiding  Commissioner 
was  overruled  by  the  Court  of  Claims  which  held  instead  that  "this  record  .  .  . 
fails  to  show  a  significant  detriment  to  plaintiff  but  does  demonstrate  injury  to 
medical  and  scientific  research  if  photocopying  of  this  kind  is  held  unlawful." 
The  publishers'  reference  to  practices  by  the  University  Microfilms  subsidiary  of 
the  Xerox  Corporation  has  no  relevance  to  library  photocopying,  and  the  firm's 
profit-making  (and  royalty-paying)  enterprise  geared  to  the  reprinting  of  multiple 
copies  of  articles  and  entire  journal  issues  would  clearly  be  outside  the  provisions 
of  Section  108  in  the  absence  of  Subsection  108(g). 

What  evidence  is  available  strongly  suggests  that  traditional  library  photo- 
copying does  not  injure  publishers,  and  in  many  instances  may  actually  increase 
subscriptions.  It  is  reasonable  to  suppose  that  libraries  which  have  frequent 
requests  for  particular  works  will  purchase  those  works,  if  they  are  available, 
to  better  serve  their  users  and  avoid  the  delay  and  administrative  expense  neces- 
sarily involved  in  inter-library  loan  transactions.  Results  of  ARL's  examination 
of  one  inter-library  loan  network  showed  a  very  low  rate  of  coincidence  among 
requests.  Rarely  was  the  same  article  requested  by  the  libraries.  It  also  revealed 
that  54  percent  of  all  requests  were  for  foreign  periodicals  and  domestic  pub- 


207 

lications  not  covered  by  copyright,  and  that  of  the  remaining  46  percent,  29  per- 
cent of  the  requests  were  for  publications  more  than  5  years  old,  and  only  17 
percent  of  all  requests  were  for  materials  five  years  old  or  less.  In  view  of  the 
facts  that  the  overwhelming  volume  of  photocopying  involved  neither  current 
publications  nor  multiple  copying  of  the  same  publications,  it  is  manifest  that 
the  photocopying  by  the  libraries  was  not  taking  the  place  of  subscriptions. 
Indeed,  library  photocopying  services  may  actually  help  to  increase  subscriptions, 
by  providing  a  kind  of  advertising  for  the  periodicals  in  which  requesters  find 
articles  of  value. 

"While  there  is  no  evidence  that  prohibiting  traditional  library  photocopying, 
or  compelling  libraries — and  ultimately  the  public — to  pay  copyright  royalties 
for  such  photocopying  will  make  any  contribution  to  the  promotion  of  science  or 
the  arts,  or  that  there  would  be  any  other  benefit  to  the  public,  it  is  manifest  that 
the  direct  and  indirect  costs  of  the  prohibition  will  be  great.  Simply  to  ascertain 
that  a  royalty  is  payable  and  to  collect,  account  for  and  remit  the  royalty  will 
involve  heavy  administrative  costs.  If  these  accounting  charges  are  passed  on  to 
library  patrons,  they  will  magnify  the  direct  cost  impact  on  the  public,  and 
discourage  use.  If  the  cost  is  charged  to  the  libraries'  periodicals  budget,  it  will 
mean  reduced  subscriptions,  resulting  in  a  decrease  in  the  periodicals  available 
to  library  users  and  loss  of  subscription  income  to  publishers.  Another  cost 
will  be  increased  theft  and  mutilation  of  publications ;  and  the  more  libraries 
have  to  spend  for  repair  and  replacement  of  mutilated  material,  the  less  they 
will  have  to  spend  on  new  books  and  journals.  But  perhaps  the  heaviest  cost 
of  all  will  be  the  intangible  cost  to  scholarship,  research  and  education  resulting 
from  the  deterrent  effect  which  imposition  of  a  royalty  fee  will  presumably  have 
on  students  and  other  researchers  whose  work  is  assisted  and  simplified  by 
ready  access  to  photocopies  for  reference. 

The  question  which  this  Subcommittee  is  called  upon  to  answer  may  be  simply 
put.  Should  a  library  be  prohibited  from  making,  at  a  user's  request,  a  single 
copy  of  a  journal  article  or  of  an  excerpt  from  another  published  work,  or  liable 
for  a  royalty  fee  simply  because  it  obtains  the  copy  from,  or  supplies  it  to  a 
branch  library,  a  library  member  of  a  county  or  regional  library  system,  or 
other  consortium  of  libraries?  Because  it  is  clear  that  such  customary  copying 
by  libraries  is  responsive  to  specific,  specialized  needs  of  library  users  provides 
the  public  access  to  materials  which  would  otherwise  be  unavailable  and  does 
not  in  fact  serve  as  a  substitute  for  svibscription  to  the  publications  concerned, 
the  answer  must  be  that  libraries  should  not  be  so  prohibited  or  so  liable.  It  is 
clear  that  the  publishers'  insistence  on  a  provision  which  would  limit  libraries  in 
this  regard  has  little  or  nothing  to  do  with  concerns  over  actual  or  potential 
subscription  losses.  For  the  most  part  subscriptions  have  increased,  with  tem- 
porary reductions  being  due  to  heavy  competition  from  other  publishers  or  to 
increases  in  subscription  rates  which  in  recent  years  have  outpaced  consumer 
price  indexes.  The  real  reason  for  the  conflict  over  library  photocopying  lies  in 
its  apparent  potential  as  a  lucrative  new  source  of  royalty  income.  Indeed  it  is 
the  publishers'  insistence  that  the  libraries  agree  to  pay  royalties  on  their  fair 
use  copying  which  has  been  responsible  for  the  breakdown  of  the  many  attempts 
to  bring  the  parties  together  to  resolve  photocopying  issues. 

The  Association  of  Research  Libraries  submits  that  the  direct  and  indirect 
cost  to  the  public  of  imposing  the  restrictions  on  traditional  library  photocopy- 
ing contemplated  by  Subsection  108(g)  (2)  far  outweigh  any  foreseeable  benefit. 
We  submit  that  Subsection  (g)  (2)  is  totally  inconsistent  with  the  constitu- 
tionally-mandated objective  of  copyright  legislation — to  promote  the  Progress 
of  Science  and  useful  Arts — and  should  be  deleted  from  H.R.  2223. 


Statement  of  Claka  Steuermann,  Peesident,  Music  Libeaby  Association 

On  behalf  of  the  Music  Library  Association,  I  should  like  to  offer  a  statement 
on  the  proposed  bill  for  the  revision  of  copyright  (H.R.  2223)  and  request  that 


208 

this  statement  be  included  in  the  record  of  the  hearings  held  May  14,  1975  by 
Representative  Robert  W.  Kastenmeier. 

The  Music  Library  Association,  on  behalf  of  the  public  which  its  members  serve, 
wishes  to  take  exception  to  the  exclusion  of  music  from  the  library  copying 
privileges  specified  in  section  108  of  H.R.  2223.  We  feel  that  patrons  of  music 
libraries  should  be  granted  the  same  rights  of  access  to  information  as  are 
extended  to  library  users  in  other  fields.  We  maintain  that  failure  to  recognize 
this  equal  right  of  access  is  discrimiuatoi-y  and  contrary  to  the  public  interest. 

Although  music  may  occupy  a  special  position  in  the  concert  hall  or  on  the  air, 
music  in  the  library  is  not  substantially  different  from  any  other  subject  collec- 
tion in  the  library.  Music  is  widely  studied  in  schools  and  uni^•ersities  not  only 
as  a  performing  art  but  as  a  humanistic  discipline  equivalent  to  English  literature 
or  history,  and  music  libraries  are  constituted  to  serve  these  studies. 

Most  music  libraries  are  located  in  large  universities,  liberal  arts  colleges, 
conservatories  and  large  public  libraries  with  extensive  research  collections. 
Music  libraries  are  the  repository  for  one  thousand  years  of  Western  culture,  the 
period  for  which  we  have  notated  readable  records  of  our  musical  heritage. 
Scholars  and  students  come  to  music  libraries  to  examine  and  study  these  works. 
Such  study  is  a  demanding  discipline  and  serious  students  need  to  study,  analyze, 
and  compare  portions  of  complex  musical  scores  in  the  same  way  that  advanced 
students  of  medieval  history,  French,  or  biology  need  access  to  data  in  their 
respective  fields.  Just  as  the  plays  of  Shakespeare  represent  more  than  a  vehicle 
for  actors  to  a  specialist  in  English  literature,  so  the  symphonies  of  Beethoven 
are  of  intellectual  and  aesthetic  concern  to  students  and  scholars  of  music. 

Perhaps  the  committee  is  unaware  that  the  exclusion  of  music  in  clause  (h) 
of  section  108  would  restrict  the  works  of  Bach,  Beethoven  and  Mozart  as  well  as 
those  of  living  composers.  Edited  versions  of  music  from  any  century  may  be 
registered  for  Class  E  (musical  composition)  copyright.  It  is,  in  fact,  almost  im- 
possible to  find  a  score  of  any  kind  published  in  this  century  which  does  not  bear 
a  copyright  notice,  and  this  notice  makes  no  distinction  between  editorial  and 
authorship  copyright.  Thus  the  exclusion  of  music  works  in  clause  (h)  will 
affect  study  not  only  of  the  music  of  Bela  Bartok  who  died  in  1945  but  of  works 
by  Wolfgang  Amadeus  Mozart  (d.  1791)  and  Guillaume  de  Machaut  (d.  1377). 
Such  restriction  may  not  be  the  intent  of  the  legislature,  but  it  wall  be  the  effect 
of  the  statute  as  it  now  stands. 

Another  characterization  of  music  is  the  practice  of  issuing  scholarly  editions 
in  large  multi-volume  anthologies  and  collected  works.  Such  sets  are  customarily 
found  only  in  libraries.  Many  of  them  have  been  out  of  print  for  years.  Because 
of  their  value,  volumes  of  such  sets  are  rarely  available  for  circulation.  Restric- 
tion of  photocopying  from  such  editions  as  included  in  108  (h)  would  relegate 
their  contents  to  library  shelves  where  only  those  with  time  and  the  ability  to 
use  the  scores  in  the  reading  room  could  benefit  from  them. 

By  way  of  contrast,  most  music  libraries  are  not  concerned  with  ephemera. 
For  instance,  the  multitudinous  lead  sheets  and  guitar  arrangements  which 
constitute  the  bulk  of  copyright  registrations  do  not  find  their  way  into  the 
regular  collection  of  the  Library  of  Congress,  much  less  into  smaller  libraries. 
Economics  alone  makes  it  impractical  for  libraries  to  house  and  care  for  material 
which  does  not  have  some  social  significance  or  enduring  aesthetic  value.  Music 
publishers  are  apparently  most  concerned  about  the  protection  of  current,  salable, 
comparatively  simple  compositions.  Restriction  of  library  copying  is  not  a  very 
practical  way  to  go  about  this.  First,  as  we  have  pointed  out,  such  works  are 
not  necessarily  likely  to  be  found  in  libraries.  Secondly,  any  musician  bound  on 
infringement  of  such  work,  a  popular  song  for  example,  could  certainly  take  a 
melod.v  and  harmony  down  by  ear  from  a  recording  or  the  radio  more  easily  than 
he  could  locate  a  copy  in  a  library. 

Evon  j^irofessional  performers  of  serious  music  do  not  use  library  copies  to  study 
and  perform  from.  A  pianist  or  a  singer  would  rather  have  his  own  score  if 
possible,  one  he  can  mark  for  his  personal  use  and  one  he  can  keep  forever.  Even 


209 

photocopies  do  not  have  the  convenience  of  the  publisher's  binding  which  is  vital  to 
the  life  of  a  well  used  score.  Of  course  serious  performers  use  libraries  but  it  is 
chiefly  to  enlarge  their  horizons  and  understanding  that  they  do  so. 

In  any  case  we  would  like  to  remind  the  committee  that  the  privileges  granted 
in  section  108  only  apply  to  material  which  cannot  be  obtained  through  current 
trade  sources.  Presumably  publishers  will  respond  to  popular  demand  by  supply- 
ing materials  to  fill  this  need.  On  the  other  hand  the  library  is  frequently  the 
only  source  for  obscure,  the  out  of  print,  the  archaic  work  which  is  not  in  great 
demand  but  access  to  which  is  urgently  needed  by  a  very  few. 

Apparently  the  words  "a  musical  work"  were  included  in  the  exclusions  to 
section  108  at  the  instigation  of  the  Music  Publishers  Association,  an  organiza- 
tion of  comparatively  narrow  economic  interest  whose  chief  function  is  the 
management  of  copyright  royalties.  We  feel  that  we,  not  they,  represent  the  public 
interest.  The  copying  privileges  extended  in  section  108  are  not  in  the  personal 
interest  of  librarians  except  insofar  as  the  librarians  are  concerned  for  the 
public  whom  they  serve.  Photocopying  certainly  means  more  wear  and  tear  on 
the  books,  and  probably  means  more  work  for  the  librarian.  The  Music  Ijibrary 
Association  here  speaks  not  for  its  members'  convenience,  but  on  behalf  of  the 
students  and  scholars  who  use  our  collections. 

The  existence  of  section  108  in  H.R.  2223  recognizes  the  enrichment  to  our 
culture  which  scholarly  study  and  its  encouragement  through  libraries  provide. 
Music  is  a  vital  part  of  our  cultural  heritage  and  its  study  as  such  is  recognized 
as  a  legitimate  scholarly  discipline.  There  is  no  valid  distinction  between  the 
scholarly  use  of  music  in  a  library  and  the  similar  use  of  scholarly  materials 
in  other  disciplines.  The  exclusion  of  music  from  the  privileges  granted  in  section 
108  would  unfairly  cripple  musical  scholarship,  including  researcli  on  music  of 
the  past  as  well  as  that  of  the  present.  Such  an  action  would  discriminate  against 
musical  scholars  and  would  be  coxitrary  to  the  best  interest  of  tlie  public  who  are 
the  ultimate  beneficiaries  of  scholarship  in  general.  Therefore,  we  respectfully 
request  that  the  House  Subcommittee  on  Patents,  Trademarks,  and  Copyrights 
eliminate  the  words  "a  musical  work"  from  section  108(h)  of  II. R.  2223. 


Statement  op  Frank  McKenna,  Executive  Directoe,   Special  Libraries 

Association,  May  14  1975 

Special  Libraries  Association  wishes  to  record  its  substantial  agreement  with 
the  provisions  of  §§  106,  107  &  108  relating  to  library  photocopying  in  H.R.  2223 
(Revision  of  the  Copyright  Law).  We  wish,  however,  to  make  two  specific 
comments  and  to  urge  that  two  siiecific  changes  be  made : 

(a)  To  comment  on  one  item  in  §  107.  Fair  use; 

(6)   To  comment  on  one  item  in  §  108(a)  (1)  ;  and 

(c)  To  urge  vigorously  for  changes  in  two  items,  in  §  lOS(g)  (1)  and  (ff)  (2). 
Reproduction  hij  libraries  and  archives. 

Our  comments  are  presented  in  the  sequence : 

1.  Identification  of  Special  Libraries  Association  and  Its  Interests. 

2.  Comments  on  §  107.  Fair  Use. 

3.  Comments  on  §108.  Reproduction  bv  Libraries  and  Archives:  3.1  §  109(a) 
(1)  ;  3.2  §  108(g)  (1)  &  (g)  (2)  ;  3.3  §  108(h). 

4.  Conclusion. 

1.  Identification  of  Special  Libraries  Association  and  Its  Interests. — Special 
Libraries  Association,  with  9,000  members,  is  the  second  largest  library-  and 
information-oriented  organization  in  the  United  States,  and  the  third  largest 
in  the  world.  It  is  estimated  that  there  are  more  than  10.000  special  libraries 
in  the  U.S.  The  concept  of  special  libraries — or  in  better  words — the  concept  of 
specialized  libraries  is  not  well  known  among  the  general  public  or  even  in  some 
segments  of  the  library  community  itself.  The  interests  and  activities  of  special- 
ized libraries  are  described  briefly  in  this  document  and  in  the  annexed  bro- 
chure.^ SLA  is  an  association  of  individuals  and  organizations  with  educational, 

1  Annex.  Special  Library  Sketchbook.  S.L.A.,  N.Y.  1972.  45  p. 


210 

scientific  and  technical  interests  in  library  and  information  science  and  tech- 
nology— especially  as  these  are  applied  in  the  selection,  recording,  retrieval  and 
effective  utilization  of  man's  knowledge  for  the  general  vpelfare  and  the  advance- 
ment of  mankind. 

Special  Libraries  Association  was  organized  in  1909  to  develop  library  and 
information  resources  for  special  segments  of  our  communities  which  were  not 
adequately  served  by  public  libraries  or  by  libraries  in  educational  institutions. 
At  first  the  emphasis  was  on  special  sub.iect  coverage  in  each  special  library 
as  it  related  to  the  interests  and  business  of  its  parent  organization,  for  example  : 
sources  of  statistical  data  for  both  corporations  and  the  agencies  of  the  national 
government  and  state  governments ;  business  data  for  banks  and  investment 
firms :  chemical  information  for  the  then  developing  chemical  industry ;  engi- 
neering information  for  the  emerging  complexes  of  engineering  and  construction 
companies,  etc. 

During  the  past  66  years — and  with  particular  growing  needs  for  rapid  informa- 
tion delivery  since  World  War  II — specialized  libraries  and  information  centers 
have  been  established  in  all  segments  of  our  nation's  affairs.  They  exist  in  for- 
profit  enterprises  and  not-for-profit  organizations,  as  well  as  in  government  agen- 
cies. Some  are  open  to  public  use,  and  others  have  restricted  access  (because  of 
security  classified  materials)  or  are  part  of  a  for-profit  organization  (because  of 
proprietary  information).  During  this  period  of  accelerated  growth,  the  original 
emphasis  on  special  subjects  has  been  replaced  more  and  more  by  the  concept  of 
specialized  information  services  for  a  specialized  clientele.  An  example  of  such  a 
specialized  information  service  for  a  specialized  clientele  is  the  Legislative  Refer- 
ence Service  of  the  Library  of  Congress.  Although  the  Library  of  Congress  (as  a 
whole)  is  often  called  a  "national  library,"  the  entire  Library  of  Congress  itself  is, 
perhaps,  an  outstanding  example  of  a  definition  of  service  to  a  specialized  clien- 
tele :  The  Congress  of  the  United  States  of  America. 

The  specialized  clients  are  normally  the  employees  of  the  parent  organization. 
The  specialized  information  services  are  based  on  the  speedy  availability  of  infor- 
mation, both  for  current  projects  and  for  management  determination  of  decisions 
regarding  future  efforts  of  the  parent  organization.  To  these  ends,  the  members  of 
SLA  include  not  only  librarians,  but  also  persons  who  are  subject  specialists — so 
that  they  can  evaluate  and  screen  out  the  irrelevant,  the  redundant  and  the  too 
often  useless  portions  of  the  voluminous  published  literature.  The  totality  of  the 
literature  includes  not  only  the  publications  of  commercial  publishers  of  copy- 
righted books  and  periodicals,  but  also  the  avalanche  output  of  government  agen- 
cies (often  with  security  handling  requirements)  plus  the  parent  organization's 
own  internal  corporate  documents  (with  the  obvious  need  to  protect  proprietary 
or  competitive  information) . 

As  a  parenthetical  observation,  it  should  be  noted  that  the  pioneering  work  in 
machine  use  for  information  storage  and  retrieval  (now  computerized)  took  place 
in  specialized  libraries  and  information  centers  in  the  1940's  and  1950's.  Similarly, 
the  need  for  miniaturization  of  the  bulk  of  the  literature  in  microforms  occurred 
through  the  influence  of  S.L.A.'s  liaison  with  designers  and  manufacturers  of 
microreading  equipment. 

Last,  but  not  least,  S.L.A.  pioneered  the  concept  of  information  networks — long 
before  computers  and  other  communication  devices  had  been  developed.  S.L.A. 
has  facilitated  communications  among  its  members  through  the  Association's 
unique  information  network  of  Chapters  and  Divisions.  Initiated  more  than  60 
years  ago,  the  network  has  been  frequently  updated  in  response  to  the  needs  of 
new  informational  requirements. 

S.L.A.  is  organized  in  26  Divisions  which  represent  broad  fields  of  specializa- 
tion or  information-handling  techniques.  These  fields  range  alphabetically  from 
Advertising,  Aerospace,  and  Biological  Sciences  through  Military  Librarians^ 
Museums,  and  Natural  Resources,  and  on  to  Transportation,  and  Urban  Affairs. 

S.L.A.  is  also  organized  in  47  regional  Chapters  which  range  geographically 
from  Hawaii  across  the  continental  United  States  (plus  two  Chapters  in  Canada) 
and  on  to  a  European  Chapter  (which  encompasses  geographically  all  the  non- 
Socialist  countries  of  Europe) . 

Special  Libraries  Association  in  its  own  right  is  a  publisher  of  three  periodicals 
and  an  average  of  six  books  per  year.  Therefore  the  Association  has  its  own 
interests  as  a  publisher  to  conserve  its  sales  income  and  royalty  income.  The 
Association's  publications  are  needed  by  special  groups,  but  they  are  in  such 
areas  of  specialization  that  commercial  publishers  (or  even  vanity  presses) 
would  not  touch  them  because  of  the  small  sales  potential.  Our  subscription  lists 
range  from  12,000  as  a  high  to  1,000  as  a  low.  Our  book  sales  average  about  1,000 


211 

copies  for  each  title  with  a  range  from  500  to  our  top  category  of  "best  sellers" 
at  a  level  of  about  3,000  copies  sold  per  title. 

2.  Gotnments  on  §  107.  Fair  Use. — The  Association  is  in  agreement  with  the 
delineation  of  "fair  use"  as  stated  in  §  107.  We  feel,  however,  that  it  is  necessary 
to  comment  specifically  on  one  phrase  in  Item  (4)  : 

(4)  the  effect  of  the  use  upon  the  potential  market  for  or  value  of  the  copy- 
righted work.  [Emphasis  indicated.] 

We  recognize  that  there  may  be  some  validity  in  tlie  claims  of  some  publishers 
of  periodicals  that  they  may  have  some  loss  of  income  due  to  multiple  photo- 
copying of  a  single  article  from  an  issue  of  the  periodical  that  is  still  avallaUe 
in-print.  If  the  issue  is  out-of-print  (that  is,  if  the  publisher  has  not  maintained 
his  stock  in-print  or  in-stock),  it  is  difficult  to  conceive  how  a  photocopy  of 
out-of-print  material  can  cause  any  loss  of  income  to  the  publisher. 

Further,  the  slow  delivery  by  publishers  to  fulfill  an  order  for  a  single  in-print 
issue  is  totally  unacceptable  to  the  needs  of  our  specialized  users  who  are 
responsible  for  fast  management  decisions.  There  is  little  question  that  it  is  an 
administrative  impossibility  to  secure  publisher  permissions  to  permit  inter- 
library  response  within  any  reasonable  time.  Moreover,  the  costs  and  delays  in 
seeking  such  permissions  would  be  prohibitive. 

It  is  also  necessary  to  note  that  the  preparation  of  photocopies  of  periodical 
articles  in  libraries  can  not  cause  a  loss  of  income  to  the  authors.  Authors  are 
rarely  paid  by  publishers  of  learned  or  trade  periodicals  (either  as  a  one-time 
payment  or  as  royalty  payments).  Indeed,  the  opposite  direction  of  payment  has 
become  prevalent  in  recent  years :  a  "page  charge"  is  to  be  paid  by  the  author 
or  his  employer  to  the  publisher.  These  page  charges  are  usually  in  the  range  of 
$50-$100  per  printed  page. 

3.  Comments  on  §  lOS.  Reproduction  ty  Libraries  and  ArcJiives. — 

o.l  Section  108(a)  (1). — The  Association  is  concerned  with  a  possible  inter- 
pretation of  §  108(a)  (1)  : 

(1)  The  reproduction  or  distribution  is  made  without  any  purpose  of  direct 
or  indirect  commercial  advantage;  [Emphasis  added.] 

Clarification  of  the  meaning  of  the  existing  language  is  necessary  because  a 
majority  of  special  library  operations  are  conducted  for  purposes  of  "indirect 
commercial  advantage"  when  the  library's  parent  organization  is  in  the  business, 
industrial,  or  financial  communities  thru  its  products  and  services.  It  occurs  to 
us  that  the  existing  language  of  §  108(a)  (1)  may  have  been  intended  to  prohibit 
a  "commercial  advantage"  to  an  authorized  or  unauthorized  reprinter  or  re- 
publisher  of  copyrighted  materials. 
We  feel  that  our  concerns  can  be  alleviated  by  either  of  two  actions  : 

( a )  by  adding  to  §  108  (a)(1)  a  phrase  such  as 

The  reproduction  or  distribution  is  made  without  any  purpose  of 
direct  or  indirect  commercial  advantage  to  a  reprinter  or  a  repuhlishcr 
[Suggested  addition  italicized.]  ;  or 

(b)  through  appropriate  commentary  in  the  legislative  history  of  H.R. 
2223  without  any  change  in  §  108(a)  (1)  as  now  written. 

Legislation  to  he  enacted  must  not  prevent  or  penalize  the  preparation  of  photo- 
copies by  any  library.  S.L.A.  is,  of  course,  particularly  concerned  about  the  status 
of  specialized  libraries — especially  those  in  for-profit  organizations.  There  will 
be  immeasurable  damage  to  the  total  economy  and  welfare  of  the  nation  if  such 
intent  were  to  be  contained  in  the  enacted  version  of  H.R.  2223,  or  if  such  inter- 
pretation is  possible  after  enactment  of  the  law.  The  rapid  transmission  of  man's 
knowledge — either  to  not-for-profit  or  to  for-profit  organizations — must  not  be 
impeded  by  law. 

■Whether  libraries  request  or  produce  photocopies,  the  libraries  are  acting  solely 
as  the  agents  for  the  individual  and  distinct  users  of  libraries  who  in  their  totality 
represent  all  strata  of  our  American  society. 

3.2  Sections  108(g)  (1)  and  108  (g)  (2). — Major  concerns  are  raised  by  §  108(g) 
which  was  inserted  after  Senate  hearings  on  §  1361  (93rd  Congress).  We  wish  to 
submit  emphatic  comments  first  on  §  108(g)  (2)  and  then  to  return  to  §  108  (g)  (1). 

(2)  Engages  in  the  systematic  reproduction  or  distribution  of  single  or 
multiple  copies  or  phonorecords  of  material  described  in  subsection  (d). 
[Emphasis  added.] 

The  Report  accompanying  §  1361  (93rd  Congress)  indicated  that  it  had  not 
been  possible  to  formulate  specific  positive  examples  of  "systematic  copying."  If 


212 

only  negative  examples  can  be  developed,  can  there  be  any  logical  basis  for  the 
insertion  of  §  108(g)  (2)  ? 

Tlie  Association  urges  that  §  108(g)  (2)  be  : 

(a)  Deleted  entirely,  or 

( b )  That  it  be  amended  by  adding  a  concluding  clause  to  read  : 

".  .  .  of  matei-ial  described  in  subsection  (d)  so  as  to  impair  the  potential  market 
for  a  copyrighted  work."  [Suggested  addition  italicized.] 

The  Association  is  concerned  that  the  inclusion  of  §  108(g)  (2) — as  now  stated — 
in  any  final  Act  will  seriously  impede  the  spontaneity  of  research  and  the  research 
capability  of  organizations  that  maintain  special  libraries  and  information  cen- 
ters whose  purpose  is  to  provide  access  to  learned,  technical,  or  specialized 
publications. 

We  are  particularly  concerned  about  any  future  construction  that  could  be 
placed  on  allegations  of  "systematic  reproduction  or  distribution"  in  §  108(g)  (2^ 
The  single  word  "systematic"  has  been  shown  to  have  an  almost  endless  number 
of  interpretations  during  the  discussions  of  the  "Conference  on  the  Resolution  of 
Copyright  Issues"  (Nov  1974- Apr  1975).  The  Conference  was  jointly  convened 
by  the  Register  of  Copyrights  and  the  chairman  of  the  National  Commission  on 
Libraries  and  Information  Science. 

It  is  important  to  recognize  that  all  libraries  act  only  as  agents  for  their 
clients  who  request  and  receive  the  photocopies.  Inclusion  of  the  word  "sys- 
tematic" does  not  seem  to  comprehend  the  operations  of  libraries- — or  the  na- 
ture of  the  requests  from  clients  of  libraries.  Libraries  provide  photocopies  of 
current  or  past  publications  in  response  to  single,  spontaneous  requests  from 
the  library's  clients.  Research  workers  are  often  thought  to  be  isolated  individ- 
uals, but  research  itself  is  not  an  isolated  activity.  Therefore,  spontaneous,  iso- 
lated— yet  single — requests  for  photocopies  of  the  same  article  or  segment  in 
a  copyrighted  pul)lication  may  be  received  from  more  than  one  requestor — each 
acting  independently  and  spontaneously. 

The  word  "systematic"  has  also  been  suggested  to  mean  "within  a  library 
system."  Library  systems  have  been  in  existence  for  many  years ;  public  library 
systems  in  cities  or  in  counties  or  multiple  special  libraries  within  a  corporation 
or  within  a  government  agency.  In  more  recent  years,  the  concept  of  broader 
library  systems   (regional  or  statewide)    has  grown.  Such  .systems  have  many 
other  meaningful  functions  other  than  the  preparation  of  photocopies  so  as  to 
achieve  economies  in  library  functions    (for  example,   shared  cataloging,   the 
acquisition  of  foreign  publications  or  of  rare  and  unusual  materials,  and  the 
improved  access  of  all  citizens  to  informational  materials  of  all  kinds).   Al- 
though publisher  representatives  have  made  claims  that  the  number  of  sub- 
scribers has  been  diminished  because  of  the  existence  of  library  systems,  no 
evidence  has  been  presented  that  any  loss  of  subscription  income  has  occurred. 
The  above  comments  regarding  §  108 (g)  (2)  are  also  applicable  to  §108 (g)  (1)  : 
(1)   is  aware  or  has  substantial  reason  to  believe  that  it  is  engaging  in  tlie 
related  or  concerted  reproduction  or  distribution  of  multiple  copies  .  .  . 
whether  made  on  one  occasion  or  over  a  period  of  time,   and    [whcthir 
intended  for  aggregate  use  by  one  or  more  individuals  or  for  separate  nsc  hy 
the  individual  members  of  a  group ;  .  .  .]  [Emphasis  added.] 
If  a  number  of  single,  isolated,  spontaneous  requests  are  received  over  a  pe- 
riod of  time  (italic  emphasis  above),  a  library  cannot  become  aware  of  sucli  a 
series  of  events  without  instituting  an  extensive  and  costly  system  of  records  of 
past  transactions. 

In  the  case  of  multiple  copy  requests  (bracketed  italic  emphasis  above),  pay- 
ment of  a  per  page  copying  fee  to  the  publisher  may  be  thought  to  provide  an 
equitable  solution  provided  that  the  costs  to  libraries  for  such  reporting  and 
payment  mechanisms  not  be  disproportionately  great  in  relation  to  tlie  copying 
fees  to  be  paid.  However,  the  two  possible  mechanisms  proposed  for  payment  of 
such  copying  fees  completely  negate  the  concept  of  "fair  use"  as  stated  in  §107. 
The  two  mechanisms  proposed  are  : 

(a)  A  variable  subscription  pricing  structure  with  a  higher  cost  to  libraries 
than  to  individuals.  Thus  the  library  would  have  paid  a  fee  even  if  no  photo- 
copy is  requested. 

(ft)  A  transaction  fee  per  page  would  result  in  the  payment  of  a  fee  even  for 
the  first  photocopy  of  an  item  prepared  unless  the  library  were  to  set  up  a 
costly  record  keeping  operation  of  all  past  photocopy  requests. 


213 

Discussions  in  past  years  had  sug:gested  a  range  of  fees  from  $0.01  to  $0.10  per 
page.  In  the  immediate  past  months,  publisher  representatives  at  meetings  of 
the  Conference  (referred  to  above)  have  indicated  that  they  wish  to  receive 
a  liigher  fee  which  they  will  determine  individually  for  each  article  in  each 
periodical  rather  than  a  per  page  charge.  It  must  be  noted  that  many  photocopy 
requests  are  for  only  one  page  or  a  few  pages  of  an  article.  Thus,  this  proposal 
also  would  be  unduly  costly  to  libraries  and  their  users. 

Should  the  final  result  of  the  proposed  legislation  be  a  copying  fee  payment, 
the  price  level  of  the  copying  fee  must  be  subject  to  determination  by  legislative 
or  regulatory  action.  Otherwise  it  is  conceivable  that  a  publisher  might  choose 
to  set  the  level  of  a  copying  fee — ^whether  for  multiple  copies  or  single  copies — 
at  such  a  high  level  that  access  to  some  areas  of  published  information  could  be 
effectively  prevented. 

3.3  Section  108 (h).— The  Association  feels  that  there  is  a  real  need  to  dis- 
tinguish between  two  formats  of  '•musical  works" : 
{a)  Printed  musical  work.s,  and 
(&)  Sound  reproductions  of  musical  works. 

To  achieve  this  distinction,  we  suggest  two  possible  amendments  to  §108(h)  : 

(1)  Delete  the  words  "a  musical  work"  becau.se  performances  are  in- 
cluded in  the  subsequent  phrase,  '"or  other  audio-visual  work,"  or 

(2)  Add  a  modifying  statement  so  that  §  108(h)  will  read  : 

"The  rights  of  reproduction  and  distribution  under  this  section  do  not  apply 
to  a  musical  work  other  than  a  printed  copy  .  .  ."  [Suggested  words  are 
italicized.] 

It  is  important  that  research  workers  and  students  of  musicology  be  allowed 
"fair  use"  access  to  portions  of  printed  music  just  as  §  108(a)  (2)  permits  "fair 
use"  access  to  textual  materials.  In  §  108(h)  a  clear  distinction  must  be  made 
between  performances  or  sound  recordings  and  music  in  printed  form. 

Jf.  Conclusion. — Public  libraries  have  been  historically  a  fundamental  develop- 
ment by  and  for  the  people  of  the  United  States.  The  initiation  and  growth  of 
specialized  libraries  represent  a  unique  development  in  the  United  States  begin- 
ning with  the  Library  of  the  Carpenters'  Company  of  Philadelphia  before  the 
American  Revolution ;  and  also  a  concept  which  has  spread  throughout  the 
world. 

Whether  the  main  function  of  a  library  is  public,  school,  university  or  special- 
ized, all  libraries  strive  to  improve  and  increase  ready  access  by  the  library'.s 
clients  to  information  that  will  enrich  the  personal  aspirations  of  the  library 
users,  the  quality  of  our  communities  (whether  urban,  suburban  or  rural),  and 
the  improvement  of  the  economic  standards  of  all  segments  of  our  nation's 
citizens   (minority  groups  and  the  disadvantaged  as  well  as  the  advantaged). 

We  recognize  the  imiwrtance  of  the  legislative  protection  of  copyright  for 
publishers  to  prevent  improper  or  unfair  diversions  from  their  rightful  prolits. 
We  also  recognize  the  importance  of  copyright  protection  for  creative  authors  to 
prevent  diversions  from  their  rightful  earnings. 

Apparently,  publishers  feel  that  their  profit  patterns  will  be  improved  by  re- 
ceiving photocopying  fees.  However,  the  establishment  of  library  photocopying 
fees  will  result  in  the  subsidization  of  the  publishing  community  at  the  expense 
of  all  taxpayers.  Public  libraries  and  those  in  tax-supported  schools  and  uni- 
versities would  have  to  seek  increased  public  funds  annually.  Special  libraries 
in  business  and  industry  would  have  to  seek  increased  budget  allotments  within 
their  corporation.  As  the  expenses  of  a  corporation  increase,  such  expenses  can 
lead  only  to  increased  costs  to  the  ultimate  consumers  of  new  products  or  of  im- 
proved old  products. 

We  ask  that  the  Subcommittee  consider  the  distinction  between  the  photo- 
copying practices  in  and  bij  libraries  on  behalf  of  library  users,  which  we  deem 
to  be  proper,  and  the  practices  outside  of  libraries  which  are  improper  and 
wiiich  preempt  the  legitimate  property  rights  of  copyright  owners. 

Special  Libraries  Association  is  grateful  to  the  Subcommittee  for  the  oppor- 
tunity to  present  our  views.  The  Association  will  be  pleased  to  submit  addi- 
tional comments  if  the  Subcommittee  desires  so  to  assist  the  Congress  in  reach- 
ing an  ultimate  and  equitable  solution  to  an  issue  that  has  values  for  all 
citizens. 


214 

congeess  of  the  united  states, 

House  of  Repeesentatives, 
Washington,  D.C.,  October  2, 1915. 
Hon.  Robert  W.  Kastenmeieb, 

Chairman,  Subcommittee  on  Courts,  Civil  Liberties,  and  the  Administration  of 

Justice,  Committee  on  the  Judiciary,  Rayburn  House  Office  Building,  House 

of  Representatives,  Washington,  D.C. 

Deab  Bob:  I  am  concerned  over  current  legislation  in  your  Subcommittee, 

H.R.  2223,  to  revise  the  copyright  law.  If  Section  108(g)  (2)  is  retained  in  this 

bill,  the  only  major  biomedical  source  library  in  the  State  of  Alaska  will  be  in 

violation  of  the  United  States  Copyright  Law. 

The  Alaska  Health  Sciences  Information  Center  serves  as  the  source  library 
for  most  of  the  material  required  by  institutions  and  over  4,000  health-related 
personnel  in  the  entire  State  of  Alaska.  This  service  makes  it  possible  for 
doctors,  nurses  and  physician  assistants  in  the  most  remote  Alaskan  villages 
to  receive  the  information  they  need  to  provide  optimum  health  care.  Because 
of  poor  communications,  lack  of  transportation  and  other  related  problems 
common  to  rural  areas  in  which  a  small  number  of  people  are  scattered  over 
vast  distances,  community  health  aides,  private  practicing  physicians,  Public 
Health  Service  personnel,  hospitals  and  universities  depend  heavily  upon  the 
freedom  to  copy  medical  journals  and  texts  for  use  in  the  bush  areas. 

Section  lOS(g)  (2)  will  affect  not  only  Alaska,  but  other  sparsely  populated 
areas  of  the  United  States  as  well.  I  urge  you  to  consider  the  elimination  of 
this  Section  of  H.R.  2223,  so  that  the  current  efforts  of  Congress  to  upgrade 
existing  health  facilities  in  these  remote  areas  of  the  country  will  not  be 
further  hindered. 

I  have  received  over  one  hundred  letters  from  physicians,  nurses,  hospitals, 
clinics,  universities  and  state  health  personnel  who  protest  inclusion  of  this 
Section  of  the  bill.  I  have  chosen  a  number  of  letters  from  each  group  of  health 
personnel  for  your  perusal.  I  request  that  these  letters,  as  well  as  my  own,  be 
included  in  the  testimony  of  the  hearings  on  H.R  2223. 
Sincerely, 

Don  Young, 
Congressman  for  all  Alaska. 

Alaska  Methodist  University, 

College  of  Nursing, 

August  12,  1975. 
Representative  Don  Young, 
U.S.  House  of  Representatives, 
Washington  D.C. 

Dear  Representative  Don  Young  :  I  am  writing  to  express  opposition  to  the 
section  on  photocopying  in  H.R.  2223,  section  108(g)  (2)  regarding  Revision  of 
the  Copyright  Law. 

Photocopying  of  books  and  articles  is  extremely  helpful  to  both  students  and 
ffsculty.  It  provides  an  inexpensive  and  rapid  way  to  acquire,  read  and  synthe- 
size new  materials,  thus  greatly  enhancing  the  quality  of  education  in  schools 
and  universities. 

Regarding  the  need  of  nurses  and  other  health  professionals,  I  feel  sure  that 
you  know  it  is  impossible  for  nurses  and  health  facilities  to  subscribe  to  all  the 
journals  they  need  to  keep  abreast  of  the  vast  volume  of  current  information. 

Therefore,  I  believe  that  health  care  of  patients  in  Alaska  may  be  compromised 
if  the  Alaska  Health  Sciences  Information  Center  is  no  longer  permitted  to 
photocopy  valuable  articles  for  nurses  and  other  health  professionals. 

Very  truly  yours, 

MoNA  Ravin,  R.N.,  MSN, 
Instructor  Coordinator  of  R.N.  Programs  and  Outreach. 


215 

Providence  Hospital, 
Anchorage,  Alaska,  July  9, 1913. 
Hon.  Peter  W.  Rodino,  Jr., 

Chairman,  Judiciary  Cotnmittee,  House  of  Representatives,  Rooin  2462,  Rayiurn 
House  Building,  Washington,  D.G. 
Dear  Congressman  Rodino  :  I  am  writing  to  express  my  opposition  to  HR  2223 
(A  Bill  For  the  General  Revision  of  the  Copyright  Law  Title  17  of  the  United 
States). 

If  this  takes  effect,  the  effect  upon  quality  medical  care  nationwide  will  be 
adverse,  and  in  Alaska  will  be  even  more  significant,  due  to  our  relative  isolation, 
there  being  no  nearby  university  centers. 
To  pass  this  resolution  would  be  a  significant  step  backward  in  medical  care. 
Sincerely, 

Maurice  J.  Coyle,  M.D., 
Department  of  Radiology. 

Wrangell  General  Hospital, 

Wrangell,  Alaska,  July  22, 1975. 
Hon.  Donald  Young, 

House  of  Representatives,  1210  Longworth  House  Office  Building, 
Washington,  B.C. 

Dear  Congressman  Young:  I  am  writing  to  you  regarding  HR  2223.  (A  Bill 
for  the  General  Revision  of  the  Copyright  Law  Title  17  of  the  United  States.) 
The  passing  of  this  bill  would  terminate  all  major  medical  library  services 
presently  provided  by  the  Alaska  Health  Sciences  Information  Center  in 
Anchorage.  This  library  is  the  only  biomedical  source  in  Alaska  and  without  this 
service  to  help  small  hospitals  like  ours,  the  quality  of  health  care  will  surely 
suffer. 

Your  help  regarding  this  bill  would  be  greatly  appreciated. 
Sincerely, 

(Mrs.)   Emma  G.  Ivy,  R.N., 

Administrator. 


The  Wisconsin  Interlibrary  Loan  Service, 

Madison,  Wis.,  May  6, 1915. 

Re  Deletion  of  Section  108(g)  (2)  of  the  copyright  revision  bill  (H.R.  2223). 
To:  Robert  W.  Kastenmeier  (D-Wis.),  Chairman,  Subcommittee  on  Courts,  Civil 

Liberties,  and  the  Administration  of  Justice. 
From :  Nancy  H.  Marshall,  Director  of  WILS. 

As  one  of  your  constituents,  I  have  always  been  grateful  for  your  support 
of  libraries  and  federal  library  programs,  including  your  recent  positive  vote 
on  the  Roybal-Obey-Stokes  amendment  to  the  Education  Appropriations  Bill 
(HR5901). 

I  have  written  to  you  several  times  in  the  past  on  what  I  believed  to  be  im- 
portant issues  and  was  gratified  that  you,  also,  shared  my  concerns.  The  issue 
in  question  is  of  such  immediate  importance  that  as  a  citizen  of  Madison,  Wis- 
consin, and  the  nation,  as  well  as  a  librarian,  I  must  speak  out. 

Your  concern  over  the  past  fifteen  years  or  more  with  copyright  revision  makes 
you  a  recognized  expert  in  Congress  on  this  complex  issue.  You  have  heard  the 
pros  and  cons  and  have  had  before  you  voluminous  written  arguments  and 
testimony,  with  more  to  come.  HR  2223  is  a  "good"  bill,  much  needed  and  long 
overdue.  My  concern,  however,  is  whether  it  is  the  intent  of  the  Congress  to 
severely  limit  or  restrict  altogether  the  public's  access  to  library  and  information 
resources  via  library  photocopying.  I  cannot  believe  this  is  the  intent  of  the 
public's  elected  representatives.  The  nation's  library  collections  are  one  of  its 
greatest  resources,  and  libraries  maintain  as  a  constant  goal  the  voidest  possible 
access  to  those  collections  by  the  nation's  citizens. 

Although  I  am  aware  of  the  fact  that  national  library  organizations,  and  the 
publishing  industry  will  be  giving  testimony  to  the  Subcommittee  on  May  14,  I 
am  deeply  concerned  that  the  interests  of  the  consumers  of  library  and  informa- 
tion resources  be  represented.  Too  often  the  user  is  overshadowed  and  not  heard 
and  remains  the  silent  majority,  even  though  s/he  is  the  ultimate  recipient  for 
good  or  ill  in  many  legislative  actions.  Thus,  it  may  be  in  this  case,  and  on 
behalf  of  the  users  I  submit  the  following  for  your  consideration. 


216 

Specifically,  my  greatest  concern  is  with  the  language  of  Section  108(g)  (2)  of 
HR  2223.  This  Section  prohibits  ".  .  .  systematic  reproduction  or  distribution 
of  single  or  multiple  copies  or  phonorecords  of  material  .  .  ."  by  libraries.  Section 
107  appears  to  appropriately  define  "fair  use",  an  historical  privilege  of  libraries, 
and  then  effectively  snatches  it  away  under  108 (g)  (2). 

Of  particular  concern  is  the  fact  that  systematic  reproduction  is  not  defined, 
and  is,  therefore,  dangerously  ambiguous,  but  if  retained  in  the  Bill  could  be 
interpreted  to  effectively  discontinue  the  traditional  right  of  libraries  of  making 
a  single  copy  of  a  copyrighted  journal  for  a  single  user,  even  when  the  number 
of  users  and  the  volume  of  single  copies  is  substantial.  Again,  I  cannot  believe 
that  the  Congress  wishes  to  deny,  under  the  new  copyright  revision,  this  his- 
torically proper  access  to  library  resources. 

On  behalf  of  the  Wisconsin  Interlibrary  Loan  Service,  its  member  libraries 
and,  most  importantly,  its  patrons,  I  urge  the  Subcommittee  to  delete  Section 
108(g)  (2)  from  the  Bill.  As  the  Director  of  the  WILS  Network,  which  serves 
all  of  the  citizens  of  the  state  of  Wisconsin  in  providing  access  to  library  materials 
for  research  and  other  educational  purposes,  it  is  inconceivable  that  this  access 
will  be  cut  off  and  that  the  taxpayers  of  this  state  will  be  prohibited  from 
obtaining  materials  by  photocopy,  materials  which  their  tax  dollars  have  been 
instrumental  in  purchasing.  Wisconsin  is  not  alone  in  this  concern.  It  is  im- 
portant to  note,  also,  that  the  National  Cktmmission  on  Libraries  and  Information 
Science,  in  its  final  draft  issued  on  March  10,  1975,  restates  its  philosophy  of 
greater,  not  less,  access  to  library  and  information  resources  by  all  the  citizens 
of  the  United  States. 

I  have  witnessed  your  concern  for  the  citizens  of  Wisconsin  and  the  nation, 
and  the  concern  of  the  other  respected  members  of  the  Subcommittee  for  their 
constituencies.  Because  of  your  collective  past  commitments,  I  respectfully 
request  that  you  give  serious  consideration  to  the  deletion  of  Section  108(g)  (2) 
when  you  report  HR  2223  out  of  committee. 

Mr.  Danielson.  First  of  all,  I  will  call  Mr.  Irwin  Karp,  who 
is  counsel  for  the  Authors  League  of  America,  Inc.  You  gentlemen 
make  yourselves  comfortable,  and  ladies.  I  note  you  are  all  here 
together,  which  is  fine. 

Our  little  schedule  calls  for  Mr.  Karp  first,  then  Mr.  Lieb,  Dr. 
Cairns,  and  Mr.  Hoopes.  Mr.  Karp,  it's  yours  for  7  minutes. 

TESTIMONY  OF  IRWIN  KARP,  COUNSEL  FOR  THE  AUTHORS 
LEAGUE  OF  AMERICA,  INC. 

jNIr.  Karp.  Thank  you,  Mr.  Chairman.  My  prepared  statement  re- 
flects that  we  are  here  by  prearrangement  at  the  table  together.  Unlike 
the  librarians  I  am  not  one  to  say  that  publishers  are  my  best  friends 
because  I  represent  professional  authors,  and  publishers  are  not  our 
best  friends ;  and  that's  true  of  librarians,  too. 

I  would  like  to  introduce  Dr.  Robert  Cairns — on  my  right — execu- 
tive director  of  the  American  Chemical  Society.  On  my  left,  Mr. 
Charles  Lieb.  counsel,  and  Mr.  Townsend  Hoopes,  president  of  the 
Association  of  American  Publishers.  They  will  discuss  the  issue  of 
library  photocopying  in  relation  to  sections  107  and  108  of  the  bill. 

Let  me  set,  if  T  may,  the  stage  for  their  discussions.  The  Xerox  and 
other  reprographic  machines  have  established  a  new  method  of 
reprint  publisliing  sometimes  called  "on-demand  publishing,"  "one- 
at-a-time  reprinting,"  or  "single-copying."  Perhaps  it's  most  starkly 
reflected  in  the  statement  of  the  Special  Libraries  Association,  which 
wants  to  increase  the  library  copying  exemption  to  cover  the  "re- 
printer"  and  "republisher,"  and  they  are  correct  in  characterizing 
libraries  as  such.  This  is  a  new  medium  for  disseminating  articles, 
chapters  from  books,  or  entire  works  for  individual  users  by  reproduc- 


217 

ins;  a  single  reprint  to  fill  each  order,  as  it  is  received.  One-at-a-time 
reprinting  is  well  established,  it  has  been  used  for  several  3^ears  by 
reprint  publishers  such  as  University  Microfilms  to  supply  books, 
journals,  articles,  and  doctoral  theses  to  individual  customers. 

Here,  for  example,  is  a  copy  of  a  429-page  book,  entitled  Teaching 
Primary  Eeading,  produced  on  a  Xerox  Copy-flo  machine  by  Uni- 
versity Microfilms.  The  label  reads,  "Published  on  demand  by  Univer- 
sity Microfilms,"  and  that  means  very  simply  that  each  time  an 
order  is  received  for  this  book,  one  copy  is  reproduced  separately  on 
that  machine  to  fill  that  order.  I  would  like  to  leave  a  copy  with  the 
committee. 

Mr.  Danielson.  Without  objection,  we  will  accept  it  in  our  files, 
though  it  will  not  be  included  in  the  record. 

^Ir.  Karp.  I  understand  that. 

Mr.  Danielson.  We  don't  want  to  be  violating  any  rules  on  printing 
copies.  [Laughter.] 

Mr.  Karp.  We  are  prepared  to  secure  a  license  for  you  to  use  the 
book.  [Laughter.] 

In  fact,  that  is  one  of  the  points.  This  book  was  produced  under 
a  license  granted  by  the  author  and  publisher.  I  know  it  because 
I  approved  the  license,  which  is  on  a  simple  form,  for  a  client  of  mine 
whose  late  husband  wrote  the  book,  and  a  royalty  is  x^aid  each  time  one 
copy  of  that  book  is  produced. 

The  process  of  one-at-a-time  reproduction  also  is  used  to  reproduce 
journa,l  articles;  and  here  is,  for  example,  a  journal  article  that  was 
produced  by  the  Xerox  Corp.,  by  permission  of  the  copyright  owner. 
I  would  like  to  leave  that,  too,  not  to  include  in  the  record,  but  for 
study  by  the  committee. 

]Mr.  Danielson.  I  want  to  point  out,  I  do  appreciate  having  the 
material  so  that  we  know  what  you  are  talking  about. 

Mr.  IvAPtP.  And  last,  to  complete  the  demonstrative  evidence,  this 
volume — which  is  quite  heavy — covers  a  listing  of  10,000  separate 
journals  which  are  placed  on  microfilm  by  the  Xerox  Corp.  under 
license  from  the  copyright  owner,  within  the  system  of  copyright,  and 
sold  to  libraries.  From  those  microfilms  are  produced  copies  like  this 
(indicating).  We  are  not  talking  about  the  old-fashioned  50-cents-a- 
page  photostat,  as  you  pointed  out  in  your  question;  we  are  talking 
aljout  new  technology,  and  methods  of  reproducing  copyrighted  ma- 
terials that  are  still  in  various  stages  of  technological  development. 

I  have  one  more  item,  this  is  called  a  microfiche  card.  This  is  even 
more  sophisticated,  and  at  the  same  time  more  simple  to  use,  and  much 
less  costly,  than  microfilm.  From  this  little  card  a  library  can  repro- 
duce copies  of  pages  of  an  article  in  this  form  (indicating).  I  will 
leave  this  for  the  committee's  study  as  well. 

The  process  of  one-at-a-time  reproduction  is  employed  by  several 
libraries,  some  of  which  serve  as  reprint  centers  for  the  patrons  of  other 
libraries,  as  well  as  their  own  users.  There  have  been  studies  which  indi- 
cate that  at  the  present  time  American  libraries  may  be  filling  as  many 
as  7  or  8  million  requests  a  year  for  this  type  of  copying.  And  we  would 
like  to,  at  the  conclusion  of  this  hearing,  submit  to  you  a  compendium 
of  reports,  as  well  as  statements  directed  to  the  specific  proposals  of 
the  American  Library  Association,  which  unfortunately  were  not 
available  to  us  in  advance  to  respond  to  as  concretely  as  we  would  have 
liked. 

57-786— 76— pt.  1 15 


218 

Mr.  Danielson.  Without  objection,  we  will  receive  your  referred 
to  comments. 

Mr.  Karp.  Much  of  this  library-copying  activity  is  devoted  to 
articles  from  essential,  copyrighted  scientific  and  technical  journals. 
Copies  produced  of  these  on  demand  of  individual  readers  are  given 
to  them  in  lieu  of  the  journal  itself,  which  is  published  to  serve  this 
very  audience.  In  Williams  &  Wilkins  the  chief  judge  in  the  Court  of 
Claims  pointed  this  out  in  his  three-man  dissenting  opinion,  support- 
ing the  opinion  of  the  trial  judge.  Actually,  if  you  add  up  the  figures 
you  have  a  complete  Mexican  standoff,  you  have  four  Court  of  Claims 
judges  going  one  way,  and  four  the  other. 

Mr.  Danielson.  That's  what  we  call  a  congressional  standoff,  and 
when  you  have  that,  nothing  passes. 

Mr.  Karp.  He  pointed  out  the  argument  that  damage  was  not 
proven  was  utterly  without  basis  in  the  record  because  the  majority 
hadn't  disproved  the  damages,  they  simply  ignored  the  trial  judge '^s 
findings. 

The  chief  judge  also  pointed  out  in  his  opinion  that  the  National 
Institutes  of  Health  at  the  present  time  purchased  only  two  subscrip- 
tions to  the  plaintiff's  journals,  and  if  nothing  else,  it  certainly  needs 
more  than  the  two  copies  to  meet  the  requests  of  the  large  in-house 
staff.  And  that  the  whole  purpose  of  what  everybody  really  concedes 
was  wholesale  systematic  reprinting,  was  to  do  away  with  the  neces- 
sity of  paying  for  any  more  subscription  copies  of  these  journals.  The 
literature  of  the  library  community  is  full  of  predictions  of  the  state 
of  the  future  which  may  resolve  itself  into  a  few  libraries  that  in 
some  instances,  for  certain  types  of  publications,  serve,  as  what  Mr. 
]McKenna  quite  accurately  referred  to  as  "reprinters"  and  "repub- 
lishers." 

I  should  point  out  that  librarians'  semantics  have  been  a  problem 
with  us  throughout  this  discussion.  They  like  to  talk  about  "inter- 
library  loans."  When  they  make  a  copy  of  something  like  this  (indi- 
cating an  article)  they  don't  lend  it  to  anybody.  At  the  Government's, 
or  the  local  comm.unity's  considerable  expense — the  figures  sometimes 
estimated  at  $5  to  $12  a  copy  to  do  this— do  all  the  work  involved. 
They  produce  a  copy  which  is  delivered  to  a  patron  of  their  own,  or 
another  library,  and  it's  his,  not  a  loan. 

I  should  at  this  time  clarify — on  the  top  of  page  3  I  should  not  over- 
look one  distinction.  I  pointed  out  when  University  JNIicrofilms  re- 
produces a  copy  of  copyrighted  work  it  pays  a  royalty.  When  the 
librarians  reproduce  it,  they  do  not  pay  a  royalty,  and  that's  the  crux 
of  the  issue,  reasonable  compensation  for  systematic  library  repro- 
duction. 

Most  of  the  examples  that  Professor  Low  ^ave  you  are  examples  of 
"fair  use"  and  that's  not  what  we  are  quarrelmg  about.  Fair  use  is  not 
paid  for,  it  is  not  charged  for ;  that  is  preserved  very  clearly  in  the 
revision  bill. 

As  my  colleagues  will  demonstrate,  section  108  of  this  bill  also  gives 
the  libraries  broad  copying  privileges  that  we  don't  think  they  had 
under  the  present  law.  Moreover,  authors  and  publishers  do  not  seek  to 
halt  systematic  library  reproduction.  We  simply  say  tliat  reasonable 
payment  should  be  made  when  copying  goes  to  this  extent,  and  that 
workable  systems  can  be  established. 


219 

Tlie  discussions  which  have  been  described  to  you,  on  the  one  hand, 
have  a  wonderful  Rashomon  flavor.  I  can't  believe  I  was  there,' 
when  I  hear  Professor  Low  and  his  colleagues  describing  w^iat  trans- 
pired. To  say  that  we,  any  of  us,  have  a  position  that  the  mere  existence 
of  a  union  list  of  serials  in  a  library  system  establishes  "systematic 
copying"  is  simply  not  the  case.  In  fact,  asked  twice,  I  twice  an- 
swered that,  "No,  we  were  not  saying  that."  We  were  merely  pointing 
out  the  various  characteristics  of  certain  library  systems  in  whose  op- 
erations one  of  the  functions  was  to  eliminate  what  they  euphemistical- 
ly called  duplication  of  periodicals.  That  means,  why  should  all  six 
or  seven  libraries  subscribe  to  a  journal  when  one  can  subscribe  and 
make  copies  for  the  others  ? 

The  uncompensated  reproduction,  uncompensated  reproduction  of 
copyrighted  woi'k  is  bound  to  have  a  damaging  effect  on  American 
publishers  and  authors. 

I  would  just  like  to  talk  briefly  about  the  purposes  of  copyright. 
The  economic  purpose  of  copyriglit  is,  in  the  Supreme  Court's  quota- 
tion— on  top  of  my  page  5 — "to  give  valuable,  enforceable  riohts  to 
authors  and  publishers,  to  afford  greater  encouragement  to  the  pro- 
duction of  literary  works  of  lasti]ig  benefit  to  the  world." 

And  the  economic  philosophy  underlying  the  copyright  clause,  as 
the  Supreme  Court  explains  it  "is  the  conviction  that  the  encourage- 
ment of  individual  efforts  by  personal  gain  is  the  best  way  to  advance 
public  welfare  through  the  talents  of  autliors." 

Thus,  the  instrument  chosen  by  tlie  Constitution  to  serve  the  public 
interest — that  interest  is  the  securing  of  ''iterary  and  scientific  works  of 
lasting  value — is  an  independent,  entrepreneurial  property-rights 
system  of  writing  and  publishing.  The  Copyright  Act  establishes  the 
rights  which  prevent  others  from  depriving  authors  and  publishers 
of  the  fruits  of  their  labor.  But,  it  guarantees  no  reward  at  all.  The 
reward  must  come,  as  in  any  private,  profit-motivated  operation,  from 
the  income  that  the  author  and  publisher  can  derive  from  the  uses 
of  their  books  and  journals.  They  have  to  take  the  risk  that  every 
entrepreneur  does,  that  the  books  and  journals  may  fail  financially, 
although  they  make  a  valuable  intellectual  contribution — and  journals 
have  failed 

Mr.  Danielson.  Let  me  interrupt  just  briefly.  I  don't  like  to  inter- 
rupt you,  I  have  practiced  law  for  a  long  time'^myself,  but  you've  got 
to  share  time  here  with  three  more  of  you  gentlemen.  If  they  want  you 
to  speak  for  them,  I'm  delighted,  but  otherwise  I  am  going  to  have 
to  let  No.  2  go  ahead. 

Mr.  Karp.  I'm  at  the  end  of  my  statement. 

]Mr.  Danielson.  With  the  permission  of  Mv.  Pattison  we  will  hear 
from  all  the  witnesses,  and  then  commence  with  the  questioning; 
thereby  we  will  enhance  the  opportunity  to  hear  you. 

Mr.  Karp.  I  simply  want  to  conclude  with  the  statement,  Mr.  Daniel- 
son,  that  we  urge  Congress  not  to  disrupt  the  delicate  balance  of  this 
system.  ^Nlany  compromises  have  been  made  by  us  already  in  order  tO' 
accommodate  librarians.  We  don't  think  any  more  are  possible  with- 
out inflicting  very  serious  damage  on  those  who  create  those  journals. 

I  have  also  included  in  my  statement  responses  to  Professor  Low's- 
almost  ritualistic  attack  on  copyright,  It  is  not  a  monopoly,  not  a 
special  privilege:  it  doesn't  restrict  the  dissemination  of  informa- 


220 

tion.  I  submit  to  you  the  only  provision  in  the  U.S.  Constitution  which 
implements  the  freedoms  of  the  first  amendment  is  the  copyright  law 
because  that  is  the  only  provision  that  establishes  a  legal,  economic 
foundation  under  which  people  can  actually  go  about  exercising  those 
rights,  by  setting  up  publishing  enterprises,  or  engaging  in  writing. 
Destroy  the  copyright  clause — and  the  librarians  are  asking  for 
partial  destruction — and  you  are  also  threatening  seriously  that  private 
enterprise  system  of  exercising  freedom  of  expression. 

Thank  you. 

[The  prepared  statement  of  Irwin  Karp  follows :] 

Statement  of  Irwin  Karp,  Counsel,  The  Authors  League  of  America 

Mr.  Chairman,  my  name  is  Irwin  Karp.  I  am  counsel  for  The  Authors  League 
of  America,  the  national  society  of  professional  writers  and  dramatists.  I 
would  like  to  introduce  Dr.  Robert  W.  Cairns,  Executive  Director  of  The 
American  Chemical  Society ;  and  Mr.  Townsend  Hoopes  and  Mr.  Charles  Lieb, 
President  and  Copyright  Counsel  of  the  Association  of  American  Publishers, 
They  will  discuss  sections  107  and  108  of  the  Copyright  Revision  Bill  and 
the  issue  of  "library  photocopying". 

The  Xerox  and  other  reprographic  machines  have  established  a  new  method 
of  reprint  publishing  sometimes  called  "on-demand  publishing,"  "one-at-a-time 
reprinting",  or  "single-copying"  (the  blander  phrase  favored  by  library  si)okes- 
meu).  However  labelled,  the  process  disseminates  articles,  chapters  from  books 
or  entire  works  to  individual  users — by  reproducing  a  single  reprint  to  fill 
each  order,  as  it  is  received.  Each  copy,  made  by  Xerox  or  other  machine,  is 
an  exact  reprint  of  the  original — letter  by  letter,  line  by  line  as  initially  set  in 
type.  One-at-a-time  reprinting  is  well  established.  It  has  been  used  for  several 
years  by  reprint  publishers  such  as  University  Microfilms  to  supply  books, 
journals,  articles  and  doctoral  theses  to  individual  customers,  "on  demand". 
Here,  for  example,  is  a  copy  of  a  429  page  book,  entitled  Teacliing  Primary 
Reading,  produced  on  a  Xerox  Copy-flo  machine  by  University  Microfilms,  The 
label  reads  "Published  on  demand  from  University  Microfilms." — ^i.e.,  when 
an  order  is  received,  one  copy  is  reproduced  separately  on  the  Xerox  machine 
to  fill  it. 

The  process  of  one-at-a-time  reproduction  is  employed  by  several  libraries 
to  make  copies  of  journal  articles  or  portions  of  books  ;  some  of  these  institutions 
serve  as  reprint  centers  for  patrons  of  other  libraries  as  well  as  their  own 
users.  Much  of  this  activity  is  devoted  to  articles  from  essential,  copyrighted 
scientific  and  technical  journals,  many  of  which  have  modest  circulations  and 
are  published  by  nonprofit  learned  societies.  Copies  of  these  articles,  produced 
on  demand  of  individual  readers,  are  given  to  tJiem  in  lieu  of  lending  the  journal, 
which  is  published  to  serve  this  very  audience.  My  colleagues  will  explain  the 
serious  injury  to  publishers  from  this  uncompensated,  systematic  reproduction ; 
and  from  its  increasing  use  by  groups  and  networks  of  libraries,  in  which  one 
institution  reproduces  copies  of  articles  from  journals  it  subscribes  to,  for 
patrons  of  other  libraries  which  do  not  subscribe  to  them. 

With  one-at-a-time  reproduction  ("single-copying",  in  library  parlance),  a 
library  could  make  many  copies  of  the  same  article  or  work.  It  produces  a  "single" 
copy  for  each  order ;  but  it  produces  as  many  copies  of  the  article  as  there  are 
orders  for  it.  Under  the  exemption  previously  sought  by  library  organizations 
in  the  Senate,  any  library  could  thus  make  many  copies  of  the  same  article,  so 
long  as  it  produced  one  copy  per  order.  (In  the  peculiar  semantics  of  library 
organizations,  copies  produced  for  patrons  of  other  libraries  are  called  "inter- 
library  loans."  Actually,  no  "loan"  is  made.  The  copy  is  delivered  to  the  patron 
and  becomes  his  property. 

There  is  one  significant  difference  I  should  not  overlook.  When  University 
Microfilms  reproduces  a  single  copy  of  a  copyrighted  work,  it  pays  the  owner  a 
Yoyalty — liaving  previously  obtained  a  license.  However,  libraries  claim,  and 
demand  Congress  give  them,  the  privilege  of  systematically  reproducing  copy- 
righted journal  articles  and  other  works  without  payment  of  compensation. 
[As  this  Committee  and  the  Copyright  Office  have  stressed,  the  copyright  owner's 
right  to  reproduce  copies  of  his  work  is  not  subject  to  a  "non-profit"  exemption]. 
Reasonable   compensation   for   systematic   library   reproduction   is   the   real 


221 

issue.  Library  photocopying  which  is  "fair  use"  (Sec.  107)  does  not  require 
payment.  And  as  my  colleagues  will  explain,  Sees.  108  (d)  and  (e)  give  libraries 
broad  copying  privileges,  without  charge.  Moreover,  authors  and  publishers  do 
not  seek  to  halt  systematic  library  reproduction,  i.e.  that  which  exceeds 
these  sections.  They  are  willing  to  authorize  such  uses.  But  they  believe  that 
when  libraries  systematically  reproduce  copyrighted  articles  or  other  works, 
reasonable  compensation  should  be  paid,  as  Sec.  108(g)  contemplates.  They 
also  believe  that  "workable  clearance  and  licensing  conditions"  can  be  developed 
mutually  by  librarians  and  copyright  owners,  the  solution  prescribed  by  this 
Committee.  My  colleagues  will  relate  the  continuing  efforts  to  accomplish  that 
result.  It  is  a  result  that  must  be  achieved.  For  imcompensated  systematic 
reproduction  of  copyrighted  works  by  libraries  will  inflict  heavy  damage  on 
publishers  of  scientific  and  technical  journals,  authors  (see  App.  I)  and  other 
publishers ;  on  the  copyright  system ;  and  on  the  public  interest  it  was  designed 
to  serve. 

THE  PURPOSES  OF  COPYKIGHT 

The  library  photocopying  issue  should  be  considered  in  the  appropriate  con- 
text— in  the  context  of  copyright's  constitutional  purposes  and  the  manner  in 
which  it  was  designed  to  serve  the  public  interest.  I  will  address  that  subject 
before  Mr.  Lieb,  Dr.  Cairns  and  Mr.  Hoopes  speak  to  the  specific  photocopying 
issues. 

As  the  Supreme  Court  has  explained,  the  Copyright  Clause  of  the  Constitution 
was  intended  to  establish  independent,  entrepreneurial,  self-sustaining  author- 
ship and  publishing  as  the  means  of  serving  the  public  interest  in  securing  the 
production  of  valuable  literary  and  scientific  works.  In  so  doing,  the  Copyright 
Clause  serves  a  second  purpose — it  implements  the  First  Amendment's  freedoms 
to  express  and  publish  ideas,  information,  opinions  and  all  manner  of  literary, 
scientific  and  artistic  works.  The  First  Amendment  protects  against  restraints  on 
these  freedoms.  But  the  Copyright  Clause  is  the  only  constitutional  provision 
which  establishes  a  legal-economic  foundation  for  exercising  them.  The  Copy- 
right Clause  thus  frees  authors  from  the  need  for  subsidization  by  the  state  or 
other  powerful,  institutional  "patrons",  and  from  the  restraints  such  support 
often  imposes.  And  it  was  intended  to  sustain  the  existence  of  a  diversity  of 
independent  publishers,  who  would  give  a  wide  range  of  viewpoints  access  to  the 
market  place  of  ideas. 

THE 

The  Supreme  Court  has  emphasized  that  the  Copyright  Clause  of  the  Con- 
stitution 

"was  intended  to  grant  valuable,  enforceable  rights  to  authors,  publishers,  etc. 
without  burdensome  requirements ;  'to  afford  greater  encouragement  to  the  pro- 
duction of  literary  [or  artistic]  works  of  lasting  benefit  to  the  world.'  " 

The  Court  said  that  the  "economic  philosophy"  underlying  the  Copyright  Clause 

"is  the  conviction  that  the  encouragement  of  individual  efforts  by  personal  gain 
is  the  best  way  to  advance  public  welfare  through  the  talents  of  authors  .  .  ." 

{Mazer  v.  Stein,  347  U.S.  201,  219) 

Thus,  the  instrument  chosen  by  the  Constitution  to  serve  the  public  interest^ 
i.e.,  the  securing  of  literary  and  scientific  works  of  lasting  value — is  an  inde- 
pendent, entrepreneurial  property-rights  system  of  writing  and  publishing.  The 
Copyright  Act  establishes  the  rights  which  prevent  others  from  depriving  authors 
and  publishers  of  the  fruits  of  their  labor.  But  it  does  not  guarantee  a  fair 
reward,  or  any  reward.  For  authors  and  publishers,  both  commercial  and  non- 
profit, must  depend  on  income  derived  from  uses  of  their  books  and  journals  to 
compensate  for  the  talent,  labor  and  money  expended  in  creating  them,  and  pro- 
vide working  capital  for  further  publications.  And  as  entrepreneurs,  they  must 
assume  the  ever-present  risk  that  books  and  journals  produced  by  substantial 
labor  and  cash  outlays  will  fail  financially  although  they  make  valuable  intel- 
lectual contributions  to  the  public  interest. 

We  urge  that  Congress  should  not  disrupt  the  delicate  balance  of  this  essential 
system.  Carving  exemptions  out  of  the  "enforceable  rights"  of  authors  and  pub- 
lishers does  not  serve  the  public  interest.  For  although  the  resulting  uncompen- 
sated uses  may  further  the  convenience  or  ambitious  plans  of  some  "user"  group, 


222 

they  diminish  or  destroy  the  ability  of  authors  and  publishers  to  serve  the  ulti- 
mate public  interest — to  continue  producing  new  works  of  lasting  benefit.  The 
publication  of  scientific  and  technical  journals,  for  example,  richly  serves  the 
public  interest — but  it  is  at  best  a  marginal  economic  operation.  Learned  societies 
and  others  who  publish  them  do  not  grow  fat  on  their  profits.  Squeezed  by  ever- 
increasing  costs  and  static  circulations,  publishers  will  be  forced  to  close  down 
some  journals  or  not  start  new  ones  if  they  are  denied  reasonable  compensation 
for  uses  of  their  articles  in  the  new  medium  of  systematic,  library  one-at-a-time 
reproduction.  Periodicals  and  journals  are  neither  immortal  nor  immune  from  the 
laws  of  economics.  The  process  of  attrition  may  not  be  apparent  to  library  spokes- 
men, but  it  is  nonetheless  inevitable.  Yet,  while  they  are  willing  to  make  substan- 
tial payments  to  the  Xerox  Corporation,  suppliers  and  library  employees  to  pro- 
vide users  with  hundreds  of  thousands  of  copies  of  copyrighted  articles,  they 
•demand  of  Congress  the  privilege  of  denying  the  journal's  publishers  any  com- 
pensation. [Ironically,  libraries  jiay  the  Xerox  Corporation  a  per-page  fee — a 
royalty,  if  you  will — for  each  page  of  each  article  they  reproduce]. 

THE  ANTI-COPYEIGHT  ARGUMENTS 

It  has  become  ritual  for  library  organization  and  Ad  Hoc  Committee  spokes- 
men to  accompany  their  demands  for  new  exemptions  with  a  series  of  attacks  on 
copyright,  calculated  to  suggest  that  the  author  has  no  legitimate  claim  to  rea- 
sonable protection  for  the  work  he  creates. 

THE    "antitrust   ARGUMENT" 

Library  and  Ad  Hoc  Committee  spokesmen  charge  that  a  copyright  is  a  "monop- 
oly", suggesting  it  offends  the  Sherman  Act.  This  is  not  so.  The  copyright  in  a  book 
is  not  a  "monopoly"  in  the  antitrust  sense.  It  does  not  give  the  author  control 
over  the  market  in  books,  or  tlie  business  of  publishing  them.  His  book  must  com- 
pete in  the  market  place  with  the  40,000  other  titles  published  that  year  and  the 
hundreds  of  thousands  still  in  print  from  prior  years,  including  many  that  deal 
with  the  same  subject.  His  copyriglit  only  gives  him  certain  rights  to  use  the 
book  he  created.  The  owner  of  a  copyright  only  has  a  "monopoly"  in  the  innocuous 
sense  that  all  property  owners  do — each  owns  a  collection  of  rights,  granted  by 
law,  to  use  that  which  he  has  created,  purchased  or  inherited. 

THE   "restraint  OP   INFORMATION"  ARGUMENT 

Library  and  Ad  Hoc  Committee  spokesmen  charge  that  a  copyright  places  a 
restraint  on  infonuation.  This  is  not  so.  A  patent  prevents  others  from  using  the 
ideas  it  protects.  A  copyright  does  not  impose  such  restraints.  Anyone  is  free  to 
use  the  ideas,  facts  or  information  presented  in  a  copyrighted  book  or  article.  The 
copyright  only  protects  the  author's  expression,  not  the  ideas,  facts  or  infor- 
mation. Other  writers  can  draw  on  them.  Other  writers  are  free  to  independently 
create  similar  (indeed  closely  similar)  woi-ks;  the  copyright  only  prevents  sub- 
stantial copying  of  the  author's  expression. 

In  Progress  and  Poverty,  Henry  George  made  this  trenchant  observation  about 
copyright : 

"Copyright  .  .  .  does  not  prevent  any  one  from  using  for  himself  the  facts,  the 
knowledge,  the  laws  or  combinations  for  a  similar  production,  but  only  from  using 
the  identical  form  of  the  particular  book  or  other  production — the  actual  labor 
which  has  in  short  been  expended  in  producing  it.  It  rests  therefore  upon  the 
natural,  moral  right  of  each  one  to  enjoy  the  products  of  his  own  exertion,  and 
involves  no  interference  Avith  the  similar  right  of  any  one  else  to  do  likewise  .  .  ." 

The  Copyright  is  therefore  in  accordance  with  the  moral  law —  (p.  411) 

THE    "MERE    PRIVILEGE"    ARGUMENT 

To  Library  and  Ad  Hoc  Committee  spokesmen,  it  smacks  of  immorality  to  sug- 
gest that  the  author  has  a  moral  claim  to  copyright  protection  in  a  work  that  he 
created,  that  would  not  have  existed  but  for  his  talent,  labor  and  creative  efforts. 
They  charge  that  copyright  is  not  "property"  because  the  rights  are  created  by 
statute,  and  that  Congress  is  not  required  to  pass  copyright  laws  since  Art.  I,  Sec.  8 
"merely"  says  that  it  "shall  have  the  power"  to  do  so.  But  the  phrase  "Congress 
shall  have  the  power"  does  not  precede  the  copyright  clause  of  Sec.  8 — it  prefaces 
the  enumeration  of  all  powers  granted  to  Congress,  including  the  powers  to  collect 


223 

taxes,  borrow  money,  raise  armies  and  regulate  commerce.  Obviously  Sec.  8  in- 
tended that  Congress  would  enact  copyright  laws  as  well  as  exercise  these  other 
vital  functions. 

Of  course  a  copyright  is  property.  Like  all  other  property,  it  is  "a  creature  and 
creation  of  law  .  .  ."  (73  C.J.S.  Sec.  1,  p.  145).  Like  all  property,  it  is  a  bundle  of 
rights  granted  by  the  state,  through  legislation  or  court  decision  Copyright  is 
hardly  the  only  form  of  property  created  by  statute.  Property  rights  in  billions  of 
dollars  worth  of  land,  minerals  and  other  natural  resources  have  been  created  by 
acts  of  Congress. 

But  there  is  one  basic  distinction.  These  other  statutes  grant  individuals  per- 
petual, exclusive  rights  in  resources  that  belonged  to  the  Nation ;  they  take  prop- 
erty from  the  public  domain  and  give  it  to  private  citizens.  The  Copyright  Act 
grants  the  author  rights  in  something  he  created  and  that  already  belonged  to  him 
at  common  law ;  and  within  a  short  time,  the  Act  takes  his  creation  from  him  or 
his  heirs  and  places  it  in  the  public  domain.  Henry  George  was  right  in  saying 
the  author's  claim  to  adequate  copyright  protection  rests  on  "natural,  moral 
right".  The  common  law  recognized  that  right,  holding  that  an  author  "has  an 
absolute  property  right  in  his  production  which  he  could  not  be  deprived  of  so 
long  as  it  remained  unpublished,  nor  could  he  be  compelled  to  publish  it."  (Ferris 
v.  Frohman).  And  as  the  Register  noted,  these  exclusive  common  law  rights  "con- 
tinue with  no  limit  even  though  the  work  is  used  commercially  and  widely 
disseminated." 

Library  and  Ad  Hoc  Committee  spokesmen  have  not  asked  Congress  to  grant 
them  an  exemption  from  the  property  rights  of  the  Xerox  Corporation  which 
would  permit  them  to  use  its  machines  without  charge  to  reproduce  "single  copies" 
of  journal  articles  or  other  copyrighted  works.  Property  rights  in  machinery  is 
something  that  appai-ently  wins  their  respect.  But  the  copyright  owner's  right  to 
compensation  for  systematic  library  reproduction  stands  on  equally  firm  moral 
and  legal  footing.  And  his  contribution  to  the  libraries'  copying  operations  is  indis- 
pensable. Unless  the  American  Chemical  Society  and  other  publishers  can  afford 
to  continue  producing  their  journals,  the  Xei-ox  machines  and  libraries  will  not 
have  articles  to  reproduce. 

"WORKABLE    CLEARANCE   AND   LICENSING   CONDITIONS"    CAN   BE   ESTABLISHED 

The  Xerox  machine,  oue-at-a-time  reprinting  and  other  reprographic  processes 
are  not  the  first  technological  changes  to  confront  authors,  publishers  and  the 
copyright  system.  Motion  pictures,  radio,  long-^playing  records,  television,  and  the 
inexpensive  mass-market  paperback  book  all  produced  enormous  transformations 
in  disseminating  copyrighted  works.  Some  new  media  destroyed  prior  ones.  Others, 
such  as  the  mass-market  paperback,  reached  millions  who  do  not  use  its  still- 
surviving  predecessor,  the  traditional  "hard-cover"  book.  Motion  pictures,  radio 
and  television  were  not  even  mentioned  in  the  1909  Act.  Yet  it  has  protected  the 
rights  of  authors  and  publishers  to  these  new  uses,  and  they  are  entitled  to  receive 
compensation  when  their  works  are  reproduced  or  disseminated  in  these  recently 
ari'ived  media. 

Moreover,  the  concept  of  copyright  has  enabled  authors  and  publishers,  and 
usei-s,  to  evolve  workable  licensing  arrangements.  "Workable  clearance  and  licens- 
ing conditions"  also  can  be  established  for  systematic  library  photocopying, 
through  the  joint  efforts  of  librarians  and  copyright  owners.  But  that  solution 
will  be  aborted  if  Congress  revises  Sec.  108  to  deprive  authors  and  publishers  of 
the  right  to  compensation  when  libraries  systematically  reproduce  copies  of  jour- 
nal articles  and  other  copyrighted  works.  Destruction  of  that  right  would  be 
totally  unfair  to  those  who  produce  these  works ;  it  would  frustrate  the  purpose 
of  the  copyright  clause :  and  it  soon  would  be  harmful  to  the  public  interest  and 
to  those  very  patrons  the  libraries  wish  to  serve  by  systematic  reproduction. 

APPENDIX   I 

Uncompensated  systematic  library  reproduction  would  also  damage  authors  of 
poetry,  fiction,  and  books  and  articles  on  political  and  social  problems,  biography, 
history  and  a  wide  range  of  other  subjects.  After  these  works  first  appear  in  a  book 


224 

or  periodical,  they  are  often  reprinted — with  tlie  author's  permission — in  an- 
thologies, text  books,  periodicals,  collections  of  the  author's  work,  etc. 

Many  authors  earn  a  substantial  part  of  their  income  from  such  reprinting  of 
their  works.  Indeed,  many  earn  the  major  part  of  their  compensation  in  this  man- 
ner. Poets,  essayists  and  short  story  writers,  for  example,  receive  very  little  when 
a  work  is  first  published  in  a  hard-cover  book  or  periodical.  But  over  the  years 
that  follow,  they  may  license  several  different  publishers  to  reprint  the  poem, 
short  story  or  essay  in  anthologies  or  collections  or  textbooks.  Although  each  fee 
is  small,  the  accumulation  of  fees  produces  a  modest  compensation  for  work  oi 
substantial  literary  and  educational  value.  As  testimony  before  your  Subcommit- 
tee indicated,  many  of  these  writers  earn  from  50%  to  75%  of  their  income  from 
these  reprint  fees. 

Authors  of  books  also  earn  a  significant  part  of  their  compensation,  in  many 
instances,  from  authorizing  the  reprinting  of  portions  of  a  work— of  similar  size 
to  periodical  articles — in  anthologies,  textbooks  and  other  collections.  Testifying 
before  the  Senate  Subcommittee,  John  Dos  Passos  noted  that  a  considerable  part 
of  his  income  from  writing,  in  recent  yeai's,  consisted  of  royalties  from  licenses  to 
reprint  portions  of  his  books  in  this  way.  And  the  Xerox  machine  has  developed 
a  new,  authorized  method  of  reprinting  poetry,  articles,  etc.  Certain  reprint  puli- 
lishers  now  prepare  customized  anthologies,  on  demand,  for  college  and  univerr-iity 
classes.  Articles  or  other  works  are  selected  by  the  professor,  the  reprint  pxiblisher 
obtains  permission  from  the  copyriglit  owupr,  and  produces  just  enough  copies  of 
each  piece,  bound  together,  to  serve  the  needs  of  the  class  or  classes.  Royalties  are 
paid  to  the  author. 

If  libraries — including  college  and  university  librarie"=! — were  given  the  power 
to  systematically  reproduce  single  copies  of  poems,  articles  and  sections  of  books 
without  compensation,  authors  would  be  severely  damaged.  The  process  of  supply- 
ing these  copies — e.g.  one  to  each  student  in  a  college  class  in  litei-ature  or  political 
science — can  replace  several  copies  of  an  anthology  or  book  in  the  library  or  sev- 
eral copies  of  a  paperback  collection  or  text  in  the  college  book  store.  It  is  not 
necessary  for  the  copies  to  be  bound,  so  long  as  they  are  provided,  they  replace  the 
authorized  copies  for  which  the  author  woukl  have  been  paid — the  anthology,  cus- 
tomized anthology,  textbook,  etc.  Unless  authors  are  compensated  for  uses  of  their 
works  by  audiences  reached  by  the  medium  of  systematic  library  one-at-a-time 
reprinting,  they  will  be  deprived  of  a  substantial  part  of  their  income. 

Various  reports  have  documented  the  enormous  increase  in  imautliorized  sys- 
tematic library  one-at-a-time  reprinting  of  journal  articles  and  other  copyrighted 
works  (e.g.  the  Sophar  &  Heilprin  Report  for  Office  of  Education,  in  1987). 
And  it  is  common  knowledge  that  the  amount  of  copying  in  large  libraries,  library 
groups  and  networks,  and  in  university  and  coMege  libraries  has  incrpased  tremen- 
dously since  the  report  made  by  Sophar  and  Heilprin  9  years  ago.  Moreover,  the 
provisions  of  the  Revision  Bill  must  deal  Mitli  the  amount  of  such  copying  that 
will  occur  next  year,  10  years  from  now,  and  20  years  from  now. 

Library  spokesmen  could  hardly  guarantee  that  an  exemption  permitting  thpm 
to  engage  in  systematic  reproduction  would  not  seriously  injure  authors,  journal 
publishers  and  other  publishers.  Furthermore,  an  exemption  for  systematic  library 
reproduction  could  not  draw  a  line — specifying  that  if  an  author  or  publisher 
suffered  a  prescribpd  degree  of  injury  from  library  reproduction  of  his  articV';, 
poems  or  stories,  libraries  must  cease  one-at-a-time  reprinting  of  his  works.  The 
only  rational  solution  is  that  proposed  by  this  Subcommittee,  workable  licensing 
arrangements  which  would  provide  authorization  for  libraries  to  copy,  and  pro- 
vide reasonable  compensation  for  authors  and  publishers. 

In  the  light  of  copyright  history,  it  would  be  dangerous  to  assume  that  uncom- 
pensated systematic  library  reproduction  will  not  inflict  substantial  damagp. 
Starting  with  the  phonograph  record,  every  new  process  of  dissemination  has 
been  greeted  with  the  same  "it's  not  a  threat"  attitude  the  library  spokesmen  have 
expressed  toward  systematic  one-at-a-tinip  rpprinting.  Had  authors  been  deprived 
of  compensation  for  uses  of  their  works  in  motion  pictures,  radio,  television  and 
mass-market  paperbacks,  few  could  today  earn  any  reasonable  compensation  from 
their  writing. 

It  should  be  emphasized  that  library  reproduction  of  articles  is  not  "note  tak- 
ing" or  a  substitute  for  copying  by  individual  readers.  Persons  who  obtain  copies 
of  articles  from  a  library  or  publisher  are  not  receiving  handwritten  notes — ■ 
they  are  acquiring  reprints  of  printed  articles  or  other  work.s,  several  pages  long — 
just  as  they  buy  or  acquire  other  printed  materials  to  avoid  the  dozens  of  hours  it 
would  take  to  copy  that  much  by  hand.  Each  copy  costs  money  to  produce.  Nor 
could  users  reproduce  the  copies  themselves.  Many  patronize  libraries  that  do  not 


225 

have  the  journals.  The  copies  are  reproduced  for  them  in  libraries  dozens  or 
hundreds  of  miles  away.  And  where  the  user's  library  subscribes  to  the  journal, 
it  will  produce  and  give  him  a  reprint  of  the  article  he  wants,  rather  than  lend 
the  journal — so  that  it  can  keep  the  journal  itself  available  to  reproduce  copies  of 
articles  for  other  patrons,  and  avoid  losing  this  reprint  master  through  wear  and 
tear,  a  user's  negligence  or  theft. 

Mr  Danielson.  INIr.  Lieb,  counsel  for  the  Association  of  American 
Publishers. 

TESTIMONY  OF  CHAHLES  H.  LIEB,  COUNSEL  FOE  THE  ASSOCIATION 

OP  AMERICAN  PUBLISHERS 

Mr.  Lieb.  I  would  like  to  preface  the  reading  of  excerpts  from  my 
statement  to  remark  that,  judging  from  the  testimony  this  morning 
from  our  friends  representing  the  libraries,  I  think  that  today,  sadly, 
we  are  further  from  a  reasonable  compromise  on  the  photocopying 
problem  than  we  have  been  for  the  last  4  or  5  years. 

Today,  for  the  first  time  in  recent  years  the  libraries  say  that  they 
oppose  the  provision  against  multiple  copying,  a  section  with  which 
thev  have  been  in  agreement  since  it  appeared  in  the  1969  Senate  bill. 
Today,  also,  for  the  first  time  they  say  they  want  the  elimination  of 
the  inhibition  against  reproduction  of  audiovisual,  musical,  and  other 
materials. 

Similarly,  for  the  first  time  in  recent  years  this  kind  of  hard-line 
position  is  taken  not  by  some  but  by  all  the  libraries,  and  that  is  a 
regressive,  not  a  compromising  position. 

They  say  today  in  answer  to  the  question  that  was  asked  them 
about  damage  to  the  publishers,  that  they  don't  think  the  publishers 
are  being  damaged.  The  publishers,  of  course,  have  no  way  of  knowing 
how  much  library  copying  is  being  done,  but  their  own  operating 
statements  tell  them  that  their  results  are  not  what  they  expected. 

But,  Mr.  Anthony  Ottinger  from  Harvard  Universitv,  from  which 
my  friend,  Mr.  Sharaf,  operates  as  well,  submitted  on  February  26  of 
this  year  a  report  under  contract  of  the  National  Commission  on 
Libraries  and  Information  Sciences,  a  report  entitled  "Elements  of 
Information  Resources  Policy,"  which  had  this  to  say,  at  page  105 : 

The  practice  of  photocopying  by  interlibrary  loans  adds  another  dimension  to 
the  problem.  Sisznificant  proportions  of  interlibrary  loans  are  met  by  what  are 
called  non-returnable  items.  Unfortunately  trend  data  on  this  score  are  not 
available.  Data  on  this  .score  disappear  altogether  from  the  19fi9  report  on 
library  statistics  of  colleges  and  universities,  and  reappear  in  the  1971  data  only 
by  number  of  participating  institutions,  without  transaction  volume  being 
given. 

And  Professor  Ottinger  from  Harvard  finishes  this  paragraph  with 
the  following,  "It  is  hard  to  avoid  the  suspicion  that  these  important 
data  were  suppressed  as  sensitive  intelligence  in  the  war  over  the 
Convright  Revision  Bill." 

The  position  of  the  Publishers  Association  in  brief  is  that  we  sup- 
port the  provisions  of  section  107  of  H.R.  222o  with  respect  to  fair  use 
and  we  support  the  pT-ovisions  of  section  108  Cf)  (8) ,  which  make  clear 
that  libraries  are  entitled  to  the  benefit  of  this  doctrine.  We  support, 
also,  the  additional  copying  pi-ivileges  extended  to  libraries  in  section 
108,  but  we  are  opposed  to  any  further  limitations  on  the  rights  of 
authors  and  other  copyright  owners;  and  we  are  opposed  in  particular 
to  the  elimination  of  what  we  thought  was  being  challenged  today 


228 

namely,  the  section  with  respect  to  systematic  copying.  And  we  are  also 
opposed  to  modification  of  what  we  learned  this  morning  is  being 
challenged,  namely  the  preceding  subsection,  which  inhibits  multiple 
copying. 

Much  of  the  copying  that  Professor  Low  spoke  about  this  morning, 
his  poor  boy  in  Arkansas  who  wants  to  copy  a  page,  is  permitted 
under  the  principles  of  fair  use.  In  addition,  much  duplication  over 
and  above  these  permissible  limits  would  be  permitted  under  lOS.  And 
the  American  Library  Association's  Subcommittee  on  Copyright,  of 
which  Professor  Low,  I  believe,  was  chairman,  was  more  candid  in  its 
committee  report  wliich  was  submitted  last  July  to  the  Library 
Association  than,  I  think,  he  was  with  you  this  morning. 

He  said  in  that  report — and  I'm  quoting — "We  now  have  provisions 
under  section  108  permitting  photocopying  of  archival  material; 
copying  for  preservation;  freedom  of  liability  for  copying  done  by 
users  on  coin-operated  machines  on  library  premises,  and  the  highly 
important  provision  permitting  the  making  of  single  copies  for  normal 
interlibrary  loan  work." 

"On  the  other  hand,"  the  report  continues,  "we  have  not  been  able 
as  yet  to  reach  agreement  on  'systematic  copying'  a  term  used  to  de- 
scribe copying  in  a  system  or  network  where  one  library  agrees  to  dis- 
continue its  subscription  to  a  journal  and  depend  on  another  library  in 
the  network  to  make  photocopies  of  articles  from  this  journal  when 
needed." 

"Copyright  proprietors,  rightly  or  wrongly,  believe  that  such  sys- 
tems or  networks  constitute  a  potential  threat  to  their  rights  and  want 
to  prohibit  such  copying  without  license.  We,  of  course,  would  like  to 
see  as  few  restrictions  as  possible," 

Agreement  has  not  been  reached  on  systematic  copying.  It  has  not 
been  reached,  because  the  libraries,  as  Professor  Low  intimated  to  you 
this  morning,  walked  away  three  times  from  us — and  Mr.  Hoopes 
will  elaborate  on  that — in  our  efforts  to  put  flesh  on  a  statutory 
design  which  by  a  series  of  guidelines  would  establish  what  kind  of 
copying  is  permissible,  and  wliat  is  not  permissible. 

We  stand  ready  to  work  out  agreements  with  respect  to  these 
guidelines.  We  stand  ready  to  establish  a  clearance  and  payment 
system  at  our  expense — not  the  libraries'.  But  so  far  the  libraries  have 
not  been  forthcoming  in  this  regard. 

Mr.  DANiELSOisr.  Well,  you  actually  have  a  minute  left.  [Laughter]. 

Mr.  LiEB.  My  friend  was  rushing  me.  I  think  he'd  rather  hear  from 
Dr.  Cairns.  I  will  yield  to  him.  Thank  you. 

[The  prepared  statement  of  Charles  H.  Lieb  follows :] 

Statement  of   Charles   H.   Lieb,   Copyright   Counsel  for  the  Association 

OF  American  Publishers,  Inc. 

I  am  Charles  H.  Lieb.  I  am  a  member  of  the  law  firm  of  Paskus,  Gordon  and 
Hyman  of  New  York  City.  I  appear  in  behalf  of  the  Association  of  American 
Publishers,  Inc.  for  whom  I  am  copyright  counsel.  Appearing  with  me  are 
Townsend  Hoopes,  President  of  the  Association,  from  whom  you  will  hear  later ; 
Alexander  C.  Hoffman  of  Doubleday  and  Company,  Inc.,  who  is  chairman  of  the 
Association's  Copyright  Committee;  and  Susan  Engelhart,  the  Association's 
staff  director  for  copyright. 

The  Association  of  American  Publishers  is  a  trade  association  of  book  pub- 
lishers in  the  United  States.  Its  265  member  companies  and  subsidiaries  are 
believed  to  produce  85  per  cent  or  more  of  the  dollar  volume  of  books  published 


227 

in  the  United  States.  Among  its  members  are  publishers  of  scientific  and  tech- 
nical journals ;  some  of  its  members  are  religious  or  educational  not-for-profit 
organizations.  We  are  grateful  for  the  opportunity  to  testify  at  the  hearing 
today  which,  we  understand,  is  limited  to  the  issue  of  library  photocopying,  and 
we  request  permission  to  file  at  a  later  date  our  formal  statement  as  part  of  the 
record  of  today's  proceedings. 

The  following,  in  brief,  is  our  position  : 

1.  We  believe  that  section  107  of  H.R.  2223  is  a  helpful  statement  of  the 
principles  of  fair  use.  and  we  support  section  108(f)  (3)  which  makes  it  clear 
that  libraries  receive  the  benefit  of  that  doctrine. 

2.  Although  in  some  respects  harmful  to  the  interests  of  copyright  proprietors, 
we  support  the  copying  privileges  extended  to  libraries  by  Section  108. 

3.  We  are  opposed,  however,  to  any  further  limitations  on  the  rights  of  authors 
and  other  copyright  owners,  and  we  are  opposed  in  particular  to  the  eliminatioti 
of  section  lOS(g)  (2)   with  respect  to  "systematic  copying.' 

Much  of  the  copying  done  by  libraries  would  be  permitted  under  the  prin- 
ciples of  fair  use  which  would  be  clarified  by  Section  107.  In  addition,  much 
library  duplication  over  and  above  the  permissible  limits  of  fair  use  would  be 
permitted  under  the  provisions  of  section  108.  This  freedom  to  conduct  normal 
library  operations  was  candidly  described  in  a  July  1974  report  of  the  American 
Library  Association  copyright  subcommittee,  a  copy  of  which  we  offer  as  an 
exhibit.  It  reads  in  part : 

"We  now  have  provisions  [under  Sec.  108]  permitting  photocopying  of 
archival  material,  copying  of  material  for  preservation,  freedom  of  liability  for 
copying  done  by  users  on  coin-operated  machines  on  library  premises,  and  the 
highly  important  provision  permitting  the  making  of  single  copies  for  normal 
interlibrary  loan  work.  [Underscoring  and  bracketed  material  supplied.]  On  the 
other  hand,  we  have  not  been  able  as  yet  to  reach  agreement  on  "systematic 
copying,"  a  term  used  to  describe  copying  in  a  system  or  network  where  one 
library  agrees  to  discontinue  its  subscription  to  a  journal  and  depend  on  another 
library  in  the  network  to  supply  photocopies  of  articles  from  this  journal  when 
needed.  Copyright  proprietors,  rightly  or  wrongly,  believe  such  systems  or  net- 
works constitute  a  potential  threat  to  their  rights  and  want  to  proliibit  such 
copying  by  them  without  some  sort  of  license.  We,  of  course,  would  like  to  see 
as  few  restrictions  as  possible  placed  on  dissemination  of  information  through 
cooperative  effort." 

Agreement  has  not  been  reached  on  systematic  copying ;  instead,  librarians 
are  now  urging  the  elimination  of  section  108(g)  (2)  so  that  they  will  he  free 
to  make  copies  not  only  for  normal  use  but  for  library  system  and  network 
operations  as  well. 

"Systematic  copying"  as  the  term  is  used  in  section  108  should  be  distinguished 
from  copying  done  pursuant  to  "isolated  single  spontaneous  requests"  such 
as  takes  place  in  normal  library  procedures.  Systematic  copying  occurs  when 
a  libi'ary  makes  copies  of  materials  available  to  users,  either  directly  or 
through  other  libraries,  under  formal  or  informal  arrangements  "whose  pur- 
pose or  effect"  is  to  have  the  reproducing  library  serve  as  the  prime  source  of  such 
material.  (Senate  Report  93-983, 122) 

Systematic  copying,  in  other  words,  substitutes  the  copying  for  the  original 
which  otherwise  would  have  been  purchased  from  the  publisher.  The  library 
world  appears  to  be  divided  on  whether  or  not  licensing  procedures  should  be 
worked  out  for  systematic  copying.  Some  insist  that  no  distinction  should  be 
admitted  between  unauthorized  systematic  copying  and  copying  pursuant  to 
isolated  requests,  and  that  payment  should  be  made  for  neither.  Others  con- 
cede the  difference  in  principle,  but  say  that  the  kind  of  copying  that  should 
be  paid  for  is  too  imprecisely  defined  in  section  108,  and  that  no  practicable 
procedures  have  been  established  by  which  clearance  can  be  obtained  and  pay- 
ments made. 

We  think  it  unnecessary  to  belabor  the  point  that  unauthorized  systematic 
copying — the  kind  of  copying  that  is  done  at  a  research  center,  or  at  a  central 
resource  point  for  use  in  a  li}>rary  network — is  the  functional  equivalent  of 
piratical  reprint  publication.  Certainly,  this  kind  of  copying  must  be  paid  for  if, 
as  the  National  Commission  on  Libraries  and  Information  Science  puts  it,  "the 
economic  viability  and  continuing  creativity  of  authorship  and  publishing"  are 
to  be  protected.  ( Synopsis  of  second  draft  proposal,  June  1974. ) 


228 

It  is  equally  meretricious  to  complain  that  the  "systematic  copying"  that  is 
to  be  paid  for  is  too  imprecisely  defined,  or  that  payment  cannot  be  made  because 
payment  systems  have  not  been  established. 

Section  108(g)  excludes  from  library  copying  privileges  not  only  "systematic 
copying"  but  also  the  related  or  concerted  reproduction  or  distribution  of  "mul- 
tiple" copies.  Systematic  copying  and  multiple  copying  are  general  concepts ;  both 
are  illustrated  by  examples  in  the  Senate  committee  report  (which  closely  follows 
the  discussion  of  fair  use  in  your  1967  committee  report),  and  neither  is  more 
Imprecise  than  many  other  statutory  or  common  law  doctrines  with  which  we 
are  all  familiar.  The  libraries  do  not  claim  an  inability  to  understand  the  multiple 
copying  concept;  the  systematic  copying  concept  is  no  less  viable  or  under- 
standable. 

What  is  missing  of  course  is  agreement  among  the  parties  to  flesh  out  the 
statute — not  only  to  formulate  photocopying  guidelines  for  the  assistance  of 
library  patrons  and  employees,  but  to  establish  workable  clearance  and  licensing 
procedures  as  well. 

This  is  what  your  committee  recommended  in  1967  and  this  is  what  the  Senate 
committee  recommended  in  1974.  Had  this  been  accomplished,  we  would  not  be 
here  today.  It  has  not  been  accomplished,  and  Mr.  Hoopes  in  his  testimony  will 
place  the  blame  squarely  where  it  belongs. 


Report  to  the  Council  of  the  American  Library  Association  Prom  the 

Copyright  Subcommittee 

The  Copyright  Revision  bill,  S.  1361,  which,  due  chiefly  to  the  cable  TV  con- 
troversy, has  resided  in  the  Senate  Judiciary  Subcommittee  during  all  of  last 
year  and  up  to  this  date  in  this  year,  now  gives  evidence  of  beginning  to  move. 
The  full  Senate  Judiciary  Committee  reported  it  out  on  July  3  and  this  last 
Monday  issued  the  accompanying  Senate  Report  (S.  Rept.  93-983)  explaining  the 
legislative  intent  in  its  passage.  It  will  now  probably  come  to  the  floor  of  the 
Senate  and  be  passed  within  the  next  month  to  six  weeks. 

We  have  had  many  conversations  with  the  members  of  the  Senate  Subcommittee 
in  the  past  several  months  about  provisions  in  the  bill  affecting  photocopying  in 
libraries.  We  now  have  provisions  permitting  photocopying  of  archival  material, 
copying  of  material  for  preservation,  freedom  of  liability  for  copying  done  by 
users  on  coin-operated  machines  on  library  premises,  and  the  highly  important 
provision  permitting  the  making  of  single  copies  for  normal  interlibrary  loan 
work.  On  the  other  hand,  we  have  not  been  able  as  yet  to  reach  agreement  on 
"systematic  copying,"  a  term  used  to  describe  copying  In  a  system  or  network 
where  one  library  agrees  to  discontinue  its  subscription  to  a  journal  and  depend 
on  another  library  in  the  network  to  supply  photocopies  of  articles  from  this 
journal  when  needed.  Copyright  proprietors,  rightly  or  wrongly,  believe  siich 
systems  or  networks  constitute  a  potential  threat  to  their  rights  and  want  to 
proliibit  such  copying  by  them  without  some  sort  of  license.  We.  of  course,  would 
like  to  see  as  few  restrictions  as  possible  placed  on  dissemination  of  information 
through  cooperative  effort. 

In  its  report,  the  Judiciary  Committee,  in  an  effort  to  remove  this  impasse, 
recommended  that  "representatives  of  authors,  book  and  periodical  publishers 
and  other  owners  of  copyrighted  material  meet  vtith  the  library  community  to 
formulate  photocopying  guidelines  to  assist  library  patrons  and  employees." 
We  believe  that  such  conferences  can  be  promoted  best  through  the  office  of  some 
interested  but  impartial  individual  and  believe  that  Miss  Barbara  Ringer,  as 
Register  of  Copyrights,  would  be  an  ideal  person  for  this.  Not  only  does  she  have 
the  confidence  of  both  librarians  and  publishers  in  her  fairness  and  impartiality, 
but  she  is  also  far  and  away  the  most  experienced  of  anyone  in  the  country  in 
the  area  of  both  domestic  and  foreign  copyright. 

In  trying  thus  to  meet  the  recommendations  of  the  Senate  Committee  in  this 
regard  and  to  accomplish  what  we  hope  will  be  of  benefit  to  all,  we  ask  Council 
to  transmit  the  following  request  to  the  Register  of  C^opyrights. 

The  American  Library  Association  urges  the  Register  of  Copyrights  to  arrange 
In  such  ways  as  deemed  feasible  and  appropriate  conferences  between  representa- 
tives of  authors  and  book  and  periodical  piiblishers  and  of  the  library  community 
to  resolve  so  far  as  possible  the  different  interests  in  copyright  legislation,  to 


229 

Institute  studies  of  related  problems,  and  to  promote  understanding  on  the  part 
of  the  general  public  of  the  many  complexities  inherent  in  the  copyright  problem. 
Presented  to  American  Library  Association  Council,  July  12, 1974. 

TESTIMONY  OP  ROBERT  W.  CAIRNS,  EXECUTIVE  DIRECTOR, 
AMERICAN  CHEMICAL  SOCIETY 

Dr.  Cairns.  I'm  Robert  Cairns,  and  I  have  a  very  lengthy  state- 
ment, which  I  will  obviously  not  have  time  to  present;  I  would  like 
to  submit  it  for  the  record. 

Mr.  Danielson.  Without  objection,  it  will  be  received  in  the  record, 
I  would  appreciate  it  if  you  would  give  us  a  "once  over  lightly,"  I  am 
sure  you  know  the  contents. 

Dr.  Cairns.  I  will  do  so.  I  have  a  summary,  and  I'll  even  have  to 
summarize  the  summary. 

Mr.  Danielson.  Fine. 

Dr.  Cairns.  First  of  all,  I  would  like  to  introduce  my  colleagues  here, 
on  my  right,  Dr.  Richard  Kenyon,  who  is  director  of  our  division  of 
communications.  And  behind  me  is  Dr.  Stephen  Quigley,  who  is  direc- 
tor of  our  department  of  chemistry  and  public  affairs,  and  Mr.  William 
Butler,  representing  Mr.  Arthur  Hanson,  general  comisel  of  our 
society. 

Perhaps  the  main  objective  of  the  American  Chemical  Society  is 
the  increase  and  diffusion  of  chemical  knowledge 

Mr.  Danielson.  Your  objection  ? 

Dr.  Cairns.  Our  principal  objective. 

Mr.  Danielson.  Thank  goodness. 

[Laughter.] 

Dr.  Cairns  [continuing].  That  lays  emphasis  on  the  fact  that  we 
are  interested  very  strongly  in  the  dissemination  of  scientific  knowl- 
edge. 

Mr.  Danielson.  That  is  the  only  basis  under  which  we  can  have 
a  copyright  law,  as  I  read  the  Constitution. 

Dr.  Cairns.  Throughout  the  past  99  years,  the  American  Chemical 
Society  approach  to  achieving  this  objective  has  been  to  gather,  to 
evaluate,  to  organize,  and  to  control  new  scientific  information  into 
a  form  useful  for  publication,  then  to  publish  journals — 16  in  num- 
ber, I  believe — and  deliver  it  to  the  scientific  world,  that  is  our  position. 

In  providing  a  record  of  new  scientific  knowledge  and  maintaining 
the  basis  upon  which  it  is  gathered,  evaluated,  and  organized  for  pub- 
lication, the  journals  provide  a  constantly  updated  authoritative  con- 
sensus of  universally  accepted  knowledge  in  the  fields  concerned.  We 
can  speak,  I  think,  on  this  theme  for  a  great  many  scientific  societies, 
although  we  are  one  of  the  largest. 

The  integi-al  pait  played  by  scientific  journals  and  scientific  re- 
search renders  them  indispensible  for  our  way  of  life.  These  jour- 
nals provide  the  knowledge  base  for  technical  development,  for  answers 
to  urgent  problems  faced  in  the  United  States  and  the  rest  of  the 
world,  such  as  the  energy  crisis,  the  world  food  problem,  the  delivery 
of  adequate  health  service,  and  pollution  abatement. 

It  is  critically  important  that  this  system  of  organizing,  evaluatiufr, 
and  providing  scientific  infomiation  remain  healthy,  that  is  our  maia 
contention. 


230 

JiTow,  the  central  argument  focusing  on  photocopying  is  essentially 
an  economic  one.  I  wish  to  call  your  attention  particularly  to  the 
critical  problem  provided  by  the  cost  of  bringing  the  research  journal 
tlirough  the  process  of  editing,  collecting  and  evaluation,  composition, 
and  other  production  steps,  up  to  the  point  of  being  ready  to  print 
the  first  copy.  These  costs  are  what  we  call  "first-copy  costs."  In  our 
system  in  making  scientific  information  broadly  available  is  to  con- 
tinue, we  must  continue  to  find  ways  to  support  these  first-copy  costs, 
as  well  as  to  pay  the  costs  of  the  journals  actually  printed  and 
delivered. 

We  are  finding  that  subscriptions  to  our  journals  are  decreasing. 
Since  1969,  subscriptions  have  decreased  from  12  to  18  percent.  For 
example,  the  Journal  of  the  American  Chemical  Society,  which  is 
our  prestige  journal,  has  dropped  from  almost  20,000  down  to  a 
little  below  16,000  subscribers  as  of  the  end  of  1974. 

The  Journal  of  Organic  Chemistry  has  dropped  from  10,500  to 
9,500 ;  the  Journal  of  Physical  Chemistry  from  6,500  to  5,500 ;  others 
have  declined  comparably. 

If  users  are  allowed,  without  paying  for  the  journal,  to  receive 
copies  of  the  journal  papers,  it  is  not  likely  that  they  will  subscribe 
to  the  journal.  Under  such  conditions,  paid  subscriptions  can  be 
expected  to  continue  to  drop  rapidly. 

While  replacement  of  actual  printed  copies  of  the  journal  by  photo- 
copies would  reduce  the  cost  to  the  user,  the  large  costs  referred  to 
as  "first-copy  costs"  would  remain  uncompensated,  it  would  have 
to  be  distributed  over  a  decreasing  number  of  journal  subscriptions, 
and  the  result  would  be  very  expensive  journals.  This  would  mean 
that  the  cost  would  fall  on  the  relatively  small  number  of  individual 
organizations  which  would  continue  to  subscribe  to  the  journal.  Ob- 
viously, a  continuous  trend  in  that  direction  would  threaten  the  eco- 
nomic stability  of  the  journal  system. 

If,  on  the  other  hand,  the  copyright  law  is  designed  to  require  pay- 
ment for  photocopying  of  papers  from  journals  of  an  adequate  and 
equitable  charge  for  the  copy,  this  would  distribute  the  cost  of  the  sys- 
tem more  equitably  over  those  who  benefit  from  it.  The  objective  ig 
not  to  prevent  such  photocopying,  but,  rather,  to  provide  support  for 
the  basic  costs  of  developing  scientific  information  for  distribution, 
thus  keeping  the  journal  system  viable  as  a  base  from  which  the  im- 
proving technologies  for  improved  dissemination  can  draw ;  the  result 
would  be  a  more  effective  and  more  lasting  total  information  system. 
Mow,  there  are  a  couple  of  studies  to  which  I  make  reference  in 
my  main  report.  One,  that  the  interlibrary  loan  requests — by  their 
own  studies — grew  from  859,000  requests  in  1965  to  double  that  figure 
in  1969,  with  projections  as  high  as  2.6  million  in  1974—75.  So,  we 
are  getting  up  into  millions,  and  millions,  and  millions  of  interlibrary 
loans,  to  give  you  an  order  of  magnitude;  and  that  is  from  their  own 
data. 

In  another  study  the  author  discussed  service  by  possibly  a  national 
periodical  resources  center.  They  estimated  that  from  the  collection 
of  10,000  titles  the  demand  will  start  growing  in  the  range  of  58,000 
to  75.000  in  the  1st  year,  to  a  range  from  2%  to  5  million  in  the  10th 
year.  Yet,  90  percent  of  these  would  be  filled  by  pliotocopies.  These 
figures  give  you  some  indication  of  the  increase  in  capacity  of  the 


231 

network  and  system  of  improving  the  dissemination  of  scientific 
information. 

However,  it  is  reasonable  to  expect  that  the  number  of  journal 
subscriptions  from  which  those  will  be  provided  will  be  much  smaller 
than  at  the  present. 

There  have  been  objections  that  any  system  of  licensing  or  fees 
for  photocopies  would  encourage  excessive  administrative  costs.  How- 
ever, a  study  of  the  elements  and  possible  systems  for  licensing  and 
collection  of  fees  for  photocopies  has  been  developed  by  a  working 
group  of  librarians  and  publishers  of  the  Conference  on  the  Resolu- 
tion of  Copyright  Issues  under  the  chairmanship  of  the  National 
Commission  on  Libraries  and  Information  Science — plans  are  now 
being  developed  for  testing  such  proposed  systems  as  a  means  of 
learning  just  how  the  process  may  be  carried  out  in  an  economically 
sound  fashion. 

I  have  here  Dr.  Kenyon  who  is  a  member  of  that  working  group 
and  he  will  be  glad  to  answer  specific  questions  on  that  system. 

Despite  reservations  on  some  segments  of  this  bill,  the  American 
Chemical  Society  recommends  passage  of  the  sections  of  H.R.  2223 
related  to  library  photocopying.  This  recommendation  is  made  with 
the  belief,  based  on  work  with  the  Conference  on  the  Resolution  of 
Copyright  Issues,  that  a  practicable  system  for  licensing  and  fee  col- 
lection for  photocopies  of  copyrighted  works  can  be  developed,  which 
will  render  fair  and  equitable  charges  for  systematic  photocopying  in 
the  interest  of  an  improved  and  economically  viable  system  for  the  dis- 
semination of  scientific  information. 

Mr.  DANrELSOx.  Thank  you  very  much.  You  have  21^  minutes  left. 
I'm  watching  the  clock  in  the  back  of  the  room.  Would  you  like  to  yield 
to  your  associate  ? 

i)r.  Cairns.  Yes. 

Mr.  Danielson.  Your  name,  sir  ? 

Dr.  Kenyon.  Richard  Kenyon.  I  would  like  to  make  a  comment  on 
the  working  group  of  the  Conference  on  the  Resolution  of  Copyright 
Issues,  which  has  been  mentioned  in  earlier  testimony  here.  The 
w^ork  of  this  group  now  has  been  announced  in  a  release  by  the  Library 
of  Congress,  and  in  our  most  recent  meeting  on  April  24,  we  agreed  the 
documents  were  public  documents.  In  the  interest  of  providing  infor- 
mation to  the  record  I  would  like  to  offer  the  report  of  our  working 
group  for  the  record. 

]Mr.  Dantelson.  "Without  objection  we  can  receive  it  in  our  files.  I 
think  we  will  withhold  just  how  much  we  want  to  print  in  the  record 
until  the  staff  and  members  have  had  a  chance  to  go  over  it.  I  do  thank 
you  for  making  it  available,  though.  [See  app.  3.] 

Dr.  Cairns.  I  think  I  can  summarize  by  saying  that  I  think  we  can 
work  out  a  system  which  is  economically  viatle,  and  continue  to  sup- 
port authors,  users,  editors,  and  members  of  the  scientific  community  at 
large. 

'Slv.  Dantelson.  Thank  you  very  much,  Dr.  Cairns. 

[The  prepared  statement  of  Dr.  Robert  W.  Cairns  follows :] 

Statement  of  De.  Robeet  W.  Cairns,  Executive  Directoe,  American  Chemical 

SOCIETT 

Mr.  Chairman  and  members  of  the  Subcommittee:  My  name  is  Robert  W. 
Cairns.  I  am  the  Executive  Director  of  the  American  Chemical  Society  and,  with 
the  authorization  of  its  Board  of  Directors,  I  appear  before  you  today  to  present 


232 

the  Society's  statement.  I  have  spent  37  years  in  industry  and  retired  as  Vice 
President  of  Hercules  Incorporated  on  July  1,  1971,  to  accept  the  position  of 
Deputy  Assistant  Secretary  of  Commerce  for  Science  and  Technology.  I  re- 
signed from  that  position  on  December  1,  1972,  on  acceptance  of  my  present  ap- 
pointment. Accompanying  me  today  are  Dr.  Richard  L.  Kenyon,  Director  of  the 
Public,  Professional  and  International  Communication  Division,  Dr.  Stephen  T. 
Quigley,  Director  of  the  Department  of  Chemistry  and  Public  Affairs,  and  JMr. 
William  B.  Butler,  representing  Mr.  Arthur  B.  Hanson,  General  Counsel  of  the 
Society. 

We  appreciate  being  given  this  opportunity  to  comment  on  certain  features 
of  the  Copyright  Revision  Bill,  H.R.  2223.  The  issues  addressed  by  this  legislation 
are  both  fundamental  to  the  formulation  of  national  science  policy,  and  of  vital 
significance  with  respect  to  the  ability  of  our  Society  to  resolve  many  of  the  prob-. 
lems  vphich  confront  it.  These  issues  have  been  under  discussion  for  some  time 
now  by  the  Committee  on  Copyrights  of  the  Board  of  Directors  and  Council  of  the 
American  Chemical  Society,  as  well  as  by  other  similar  scientific  societies,  and  a 
general  consensus  on  them  has  been  under  development.  This  consensus  has  been 
developed  in  the  context  that  the  protection  of  copyrighted  material  will  "pro- 
mote the  Progress  of  Science  and  Useful  Arts",  as  specified  in  Article  I,  Section 
8,  Clause  S  of  the  Constitution  of  the  United  States.  The  viewpoint  which  we  at- 
tempt to  express  is  that  of  the  chemical,  scientific  and  technological  commu- 
nity, as  represented  by  the  American  Chemical  Society. 

The  American  Chemical  Society  is  incorporated  by  the  Federal  Congress  as  a 
non-profit,  membership,  scientific,  educational  society  composed  of  chemists  and 
chemical  engineers,  and  is  exempt  from  the  payment  of  Federal  income  taxes 
under  section  501(c)  (3)  of  the  Internal  Revenue  Code  of  1954,  as  amended. 

The  American  Chemical  Society  consists  of  more  than  107,000  such  above 
described  members.  Its  Federal  Charter  was  granted  by  an  Act  of  the  Congress 
in  Public  Law  358,  75th  Congress,  1st  Session,  Chapter  762,  H.R.  7709,  signed 
into  law  by  President  Franklin  D.  Roosevelt  on  August  25,  1937,  to  become 
efl'ective  from  the  first  day  of  January,  1938. 

Section  2  of  the  Act  is  as  follows  : 

"Sec.  2.  That  the  objects  of  the  incorporation  shall  be  to  encourage  in  the 
broadest  and  most  liberal  manner  the  advancement  of  chemistry  in  all  its 
branches ;  the  promotion  of  research  in  chemical  science  and  industry ;  the 
improvement  of  the  qualifications  and  usefulness  of  chemists  through  high 
standards  of  professional  ethics,  education,  and  attainments ;  the  increase  and 
diffusion  of  chemical  knowledge;  and  by  its  meetings,  professional  contacts, 
reports,  papers,  discussions,  and  publications,  to  promote  scientific  interests  and 
inquiry,  thereby  fostering  public  welfare  and  education,  aiding  the  development 
of  our  country's  industries,  and  adding  to  the  material  prosperity  and  happiness 
of  our  people." 

Its  Federal  incorporation  replaced  a  New  York  State  Charter,  which  had  been 
effective  since  November  9, 1877. 

One  of  the  principal  objects  of  the  Society,  as  set  forth  in  its  Charter,  is  the 
dissemination  of  chemical  knowledge  through  its  publications  program.  The 
budget  for  the  Society  for  the  year  1975  exceeds  $39,000,000  of  which  more  than 
$30,000,000  is  devoted  to  its  publications  program. 

The  Society's  publication  program  now  includes  three  magazines  and  seven- 
teen journals,  largely  scholarly  journals  that  contain  reports  of  original  research 
from  such  fields  as  medicinal  chemistry,  biochemistry,  and  agricultural  and  food 
chemistry,  as  well  as  a  weekly  newsmagazine  designed  to  keep  chemists  and 
chemical  engineers  abreast  of  the  latest  developments  affecting  their  science  and 
related  industries.  In  addition,  the  Society  is  the  publisher  of  Chemical  Abstracts, 
one  of  the  world's  most  comprehensive  abstracting  and  indexing  services.  The 
funds  to  support  these  publications  are  derived  chiefly  from  subscriptions. 

The  journals  and  other  published  writings  of  the  Society  serve  a  very  im- 
portant function,  namely  :  they  accomplish  the  increase  and  diffusion  of  chem- 
ical knowledge  from  basic  science  to  applied  technology.  In  so  doing,  they 
must  generate  revenue,  without  which  the  Society  could  n,ot  support  and  con- 
tinue its  publications  program  in  furtherance  of  its  Congressional  Charter  to 
sei've  the  science  and  technology  of  chemistry.  The  protection  of  copyright  has 
proved  an  essential  factor  in  the  growth  and  development  of  the  scientific-. 
publishing  program  of  the  Society. 

The  twenty  periodical  publications  of  the  Society  produce  more  than  40,000 
pages  a  year  and  subscriptions  in  1974  totalled  323,000.  Chemical  Abstracts 
annually  produces  more  than  140,000  pages  which  go  to  5,500  subscribers.  Its. 


233 

abstracts  number  in  excess  of  361,000  yearly  and  its  documents  indexed  in  excess 
of  425,000.  The  single  greatest  source  of  income  for  all  ACS  publications  is  sub- 
scription revenue. 

As  is  indicated  by  the  objectives  of  the  American  Chemical  Society,  we  believfr 
that  the  effective  dissemination  of  scientific  and  technical  information  is  critical 
to  the  development,  not  only  of  the  society  and  economy  of  the  U.S.A.,  but  also 
of  modern  society  worldwide. 

These  journals  provide  the  knowledge  base  for  technical  development  of 
answers  to  urgent  problems  facing  the  United  States  and  the  rest  of  the  world, 
such  as  the  energy  crisis,  the  world  food  problem,  the  delivery  of  adequate- 
health  services,  and  pollution  abatement.  It  is  critically  important  that  this 
system  for  organizing,  evaluating,  and  providing  scientific  information  remain 
healthy. 

Scholarly  journals  are  the  major  instruments  for  dissemination  and  recording 
of  scientific  and  technical  information.  These  journals  are  expensive  to  produce. 
If  the  costs  are  not  supported  financially  by  those  who  make  use  of  them  they 
cannot  continue.  There  is  no  adequate  substitute  in  sight. 

The  scholarly  scientific  or  technical  journal  is  more  than  merely  a  repository 
of  information.  The  scientific  paper  is  the  block  with  which  is  built  our  under- 
standing of  the  workings  of  the  world  around  us.  In  his  papers,  each  scientist 
records  his  important  findings  for  the  permanent  record.  His  successors  then  have 
that  knowledge  precisely  recorded  and  readily  available  as  a  base  from  which 
they  may  start.  So  the  process  continues  in  a  step-by-step  fashion  from  scientific 
generation  to  scientific  generation,  each  worker  having  available  to  him  or  her 
the  totality  of  the  knowledge  developed  up  to  that  time.  Each  scientist  stands 
upon  the  shoulders  of  his  predecessors. 

But  this  analogy  of  simple  physical  structure  is  inadequate,  for  at  least  of 
equal  importance  is  the  continuous  refinement  that  takes  place.  Before  new 
knowledge  is  added  to  the  record,  it  is  reviewed,  criticized  and  edited  by  authj)ri- 
tative  scholars ;  then,  once  published,  it  is  available  in  the  record  for  continued 
use,  criticism,  and  refinement.  New  findings  make  possible  the  revelation  of 
weaknesses  in  the  earlier  arguments  and  conclusions,  so  that  as  the  structure 
of  scientific  knowledge  is  built  higher  it  is  also  made  stronger  by  the  elimination 
of  flaws.  While  it  has  been  said  that  mankind  is  doomed  to  repeat  its  mistakes, 
the  system  of  scientific  recording  in  journals  is  designed  to  prevent  the  repetition 
of  such  mistakes  and  to  avoid  building  upon  erroneous  conclusions.  The  scholarly 
journal  record  is  the  instrument  for  insuring  this  refining  process. 

In  addition,  journal  papers  form  an  important  part  of  the  basis  upon  which  a 
scientist's  standing  among  his  peers  is  judged.  For  this  reason,  scientific  scholars 
are  willing  to  give  their  time  and  effort  to  help  produce  these  evaluated  records 
and  are  also  willing  to  leave  the  management  of  the  copyright  on  their  papers  in 
the  hands  of  the  scientific  societies.  These  sckolars  are  rarely  concerned  with 
private  income  from  their  published  papers,  but  they  are  vitally  concerned 
with  the  preservation  of  the  intrinsic  value  of  the  scientific  publishing  system. 

Publishing  costs  have  risen  and  are  rising  continuously,  making  the  con- 
tinuation of  the  scientific-journal  system  increasingly  difficult.  This  has  been 
recognized  by  the  U.S.  Government  in  acknowledging  the  philosophy  that 
scientific-research  work  is  not  complete  until  its  results  are  published,  and  in 
establishing  a  policy  which  makes  it  proper  that  money  may  be  used  from  federal 
support  of  research  projects  to  help  to  pay  the  cost  of  journal  publication.  It  is 
this  policy  which  provides  most  of  the  funds  for  paying  page  charges,  charges 
originally  designed  to  pay  the  cost  of  bringing  the  research  journal  through  the 
editing,  composition,  and  other  production  steps,  up  to  the  point  of  being  ready 
to  print.  However,  publishing  costs  are  now  so  high  that  these  page  charges  no 
longer  pay  even  for  these  initial  parts  of  the  publishing  process.  American 
Chemical  Society  records  in  1974  show  that  page  charges  supported  one-third  or 
more  of  those  costs  for  fewer  than  30%  of  ACS  journals. 

Publishing  costs  must  be  shared  by  the  users.  If  these  users  are  allowed,  with- 
out payment  to  the  journal,  to  make  or  to  receive  from  others  copies  of  the  jour- 
nal pajiers  they  may  wish  to  read,  it  is  not  likely  they  will  be  willing  to  pay  for 
subscriptions  to  these  journals.  If  and  as  free  photocopying  of  journals  proceeds, 
the  number  of  subscribers  will  shrink,  and  subscription  prices  will  have  to  rise. 
The  reduction  of  subscription  income  may  continue  to  the  point  of  financial 
destruction  of  these  journals. 

57-786— 76— pt.  1 16 


234 

The  problems  of  the  commercial  publishers  of  many  good  scientific  journals 
are  even  more  severe,  because  these  publishers  do  not  have  the  moderate  as- 
sistance of  page  charges.  ,     .     ,      , 

The  doctrine  of  fair  use,  developed  judicially  but  not  legislatively,  has  long 
been  useful  to  the  scholar,  for  it  has  allov^^ed  him  to  make  excerpts  to  a  limited 
extent  for  purposes  of  the  files  used  in  his  research.  However,  the  modern  tech- 
nology of  reprography  has  offered  such  mechanical  efficiency  and  capacity  for 
copying  that  it  is  presently  endangering  the  protection  given  the  foundations 
of  the  scholarly  journal  by  copyright.  "Excerpts,"  instead  of  being  notes,  sen- 
tences, or  paragraphs,  are  being  interpreted  to  mean  full  scientific  papers,  the 
aforementioned  building  blocks. 

As  the  copyrighted  journal  system  developed,  it  was  agreed  long  ago  that  the 
scholar  should  be  allowed  to  hand-copy  excerpts  for  use  as  background  informa- 
tion. As  a  further  step,  authors  became  accustomed  to  ordering  the  reprints  of 
their  papers  to  send  to  their  colleagues  as  a  means  of  assuring  a  good  record 
of  the  progress  of  work  in  the  field  concerned.  This  was  followed,  20-80  years 
ago.  by  some  minor  use  of  the  old  "Photostat"  machine.  While  that  process 
stra'ined  a  little  the  proprieties  of  copyright,  it  was  fairly  generally  agreed 
that  the  mechanics  of  the  practice  were  such  as  to  help  the  research  scientist 
while  difficult  and  costly  enough  not  to  undermine  the  basic  structure  of  the 
journal  system. 

We  hold  no  objection  to  a  scholar  himself  occasionally  making  a  single  copy 
in  a  non-systematic  fashion  for  use  in  his  own  research.  However,  in  the  past 
decade  the  techniques  of  reprography  have  advanced  to  such  an  extent  that 
third  parties,  human  and  mechanical,  are  beginning  to  be  involved  in  a  sub- 
stantial way.  It  now  is  practical  to  build  what  amounts  to  a  private  library 
through  rapid  copying  of  virtually  anything  the  scholar  thinks  he  might  like 
to  hnve  at  hand.  While  this  process  has  obviously  personal  advantages,  it  is  now 
being  done  extensively  and  increasingly,  without  any  contribution  from  these 
scholars — or  the  libraries  which  copy  for  them — to  the  cost  of  developing  and 
maintaining  the  basic  information  system  that  makes  it  possible.  Even  con- 
servative projections  of  the  development  of  reprographic  techniques  within  the 
next  decade  make  it  clear  that  the  economic  self-destruction  of  the  system  within 
the  next  decade  is  a  real  possibility.  Overly  permissive  legislation  could  make 
this  destruction  a  certainty. 

Use  of  a  journal  by  an  individual  for  extracting  from  it  with  his  own  hands, 
by  hand-copying  the  material  specifically  needed  and  directly  applicable  to  hia 
research,  is  one  thing.  A  practice  in  which  an  agent,  human  or  mechanical,  acts 
as  copier  for  an  individual  or  group  of  individuals  wishing  to  have  readily 
available,  without  cost,  copies  of  extensive  material  more  or  less  directly  related 
to  his  or  their  studies  and  research,  is  quite  a  different  matter.  The  latter  is 
certainly  beyond  justification  on  the  mere  grounds  that  technology  has  made 
it  convenient,  or  that  the  purposes  are  socially  beneficial. 

Documented  evidence  of  the  increase  in  photocopying  is  found  in  "A  Study 
of  the  Characteristics,  Costs,  and  Magnitude  of  Inter  Library  Loans  in  Academic 
Libraries,"  published  in  1972  by  the  Association  of  Research  Libraries.  There 
we  find  that  in  1969-70  the  material  from  periodicals  sent  out  in  response  to 
requests  for  "interlibrary  loans"  filled  by  the  academic  libraries  surveyed  was 
S3.2  percent  in  photocopy  form  as  compared  with  15.2  percent  in  original  form 
and  1.4  percent  in  microform. 

In  that  same  report  the  volume  of  interlibrary  loan  activities  from  academic 
libraries  is  traced.  It  grew  from  859,000  requests  received  by  academic  lending 
libraries  in  1965-66  to  1,754,000  in  1969-70.  and  is  projected  to  reach  2,646.000  in 
1974-75, 

Much  thinking  and  study  are  being  devoted  to  systems  for  improving  access 
to  periodicals  resources  through  networks.  These  networks  would  make  the 
scientific  information  available  widely  and  rapidly  from  a  relatively  small 
number  of  original  journal  copies.  In  "Access  to  Periodical  Resources :  A  Na- 
tional Plan",  by  Vernon  E.  Palmour.  Marcia  C,  Bellassai,  and  Lucy  M,  Gray,  a 
report  prepared  at  the  request  of  the  Association  of  Research  Libraries,  it  is 
stated  that  a  number  of  advantages  accrue  to  the  provision  of  photocopies  in- 
stead of  originals.  "Supnly  of  photocopies."  the  report  states,  "is  more  es- 
sentially a  'mail  order'  or  merchandising  rather  than  a  lending  operations."  It 


235 

is  also  noted  tbat  "A  single  copy,  or  in  some  cases  a  few  copies,  at  a  center  can 
meet,  without  undue  delay,  the  needs  of  a  large  number  of  users." 

In  viewing  the  possible  growth  of  service  by  a  National  Periodical  Resources 
Center,  the  authors  estimated  that  from  a  collection  of  ten  thousand  titles,  the 
demand  would  grow  starting  in  the  range  of  58,000  to  75,000  in  the  first  year  to 
a  range  of  2,281,000  to  5,462,000  in  the  tenth  year,  with  90  percent  of  the  request 
being  filled  by  photocopies. 

Such  estimates  as  these  show  expectations  of  a  great  growth  in  use  of  photo- 
copied material.  Obviously  the  direct  uses  of  the  printed  journal  would  be  very 
small. 

These  data  give  some  indication  of  the  trends  in  use  made  of  the  published 
literature  without  contribution  of  any  share  of  the  very  considerable  cost  of 
evaluating,  organizing,  and  publishing  it. 

In  another  report,  "Methods  of  Financing  Interlibrary  Loan  Services,"  by 
Vernon  E.  Palmour,  Edwin  E.  Olson,  and  Nancy  K.  Roderer,  a  fee  system  is  sug- 
gested as  a  practical  possibility  with  the  fee  initially  set  at  $3.50,  about  half 
the  full  cost  recovery,  and  gradually  increasing  toward  providing  the  full  cost. 
No  consideration  is  given  in  this  suggestion  to  payment  of  a  fee  to  the  publishers 
from  whose  periodicals  the  copies  are  made.  An  adequate  additional  fee,  paid 
into  a  clearinghouse  and  distributed  to  the  appropriate  publishers,  could  spread 
the  full  cost  of  support  of  a  journals  system  equitably  over  the  users. 

It  is  desirable  that  use  he  made  of  modern  technology  in  developing  optimum 
dissemination.  This  technology  includes  the  use  of  modern  reprography,  but 
as  technology  inherently  includes  economics  the  means  of  financial  support  of 
the  system  must  be  a  part  of  its  design.  Therefore,  photocopying  systems  must 
include  an  adequate  means  of  control  and  payment  to  compensate  publishers 
for  their  basic  editorial  and  composition  costs.  Otherwise,  "fair  use"  or  library- 
photocopying  loopholes,  or  any  other  exemptions  from  the  copyright  control 
for  either  profit  or  non-profit  use,  will  ultimately  destroy  the  viability  of  scien- 
tific and  technical  publications  or  other  elements  of  information  dissemination 
systems. 

The  copyright  law  is  directed  to  the  interest  of  the  public  welfare.  It  is  not 
in  the  interest  of  the  public  welfare  to  modify  the  copyright  laws  so  as  to  allow 
the  economic  destruction  of  the  scientific  and  technical  information  system. 

The  American  Chemical  Society  is  properly  concerned  with  the  clarity  and 
vitality  of  the  copyright  laws  of  the  United  States  and  of  the  world.  These 
laws  have  provided  a  sound  basis  for  the  continuity  of  scientific  communica- 
tion programs,  including  at  present  the  primary  and  secondary  journals,  micro- 
forms, and  computerized  information  systems. 

The  Society  recognizes  that  its  members  and  others  concerned  with  its  pub- 
lications are  both  "authors"  and  "users"  of  information,  and  that  it  is  the  So- 
ciety's objective  to  serve  their  needs  as  fully  as  possible.  It  recognizes  the 
functions  and  problems  of  such  vital  information  channels  as  libraries,  infor- 
mation centers,  and  information  systems  and  networks.  It  further  recognizes 
the  challenges  offered  by  technological  advances  in  communication  techniques. 

However,  scientific  communication  programs  cannot  continue  without  proper 
funding,  and  in  the  immediate  future  this  funding  must  continue  to  come  from 
"authors"  and  "users."  "Page  charges"  are  an  acceptance  of  the  philosophy 
that  "authors"  (or  their  employers)  must  share  in  the  funding  of  the  communica- 
tion process,  and  that  publication  of  findings  is  the  final  step  in  the  completion 
of  a  significant  study.  "Users"  have  traditionally  paid  their  share  through  per- 
sonal and  employer  (library)  subscriptions  to  printed  publications,  but  "tech- 
nology" and  "networks"  are  changing  the  need  for  multiple  or  even  local  copies, 
making  it  all  the  more  vital  that  revenue  be  obtained  in  relation  to  direct  use, 
wherever  and  however  provided. 

Because  law  is  the  basis  for  order  among  individuals,  organizations,  and  na- 
tions, the  Society  believes  that  the  laws  which  affect  communicaton — informa- 
tion transfer — must  be  equitable  and  clear,  and  that  they  must  be  periodically 
reviewed  to  maintain  these  qualities.  The  copyright  law  of  the  United  States 
has  not  been  seriously  updated  since  1009,  and  it  is  badly  in  need  of  revision. 
Its  antiquity  is  the  direct  cause  for  present  ethical  and  judicial  arguments  over 
what  is  "fair"  or  "free"  as  regards  communication — arguments  which  obscure 
the  basic  rights  of  authorship :  the  "value  added"  factors  in  reviewing,  editing, 
publishing,  and  information-base  creation ;  and  the  fact  that  the  real  problem 


236 

is  inadequate  funding  at  most  stages  of  the  communication  process  (including 
libraries). 

Tlie  Society  has  repeatedly  and  clearly  stated  its  need  for  copyright  pro- 
tection against  continuation  and  growth  of  "uncontrolled  dissemination  of  scien- 
tific information" — the  unauthorized  regular  or  systematic  or  concerted  single- 
copy  republishing  of  Society  papers  by  libraries  or  networks  of  libraries.  The 
Society  is  opiwsed  to  copyright-law  revisions  relating  to  "copying"  that  would 
destroy  the  copyright  protection  for  its  publication  programs. 

Until  communication  issues  can  be  further  clarified,  the  Society  would  prefer 
that  "fair  use"  remain  a  judicial  rather  than  a  legislative  concept.  The  So- 
ciety is  specifically  opposed  to  any  definition  of  "fair  use"  that  could  be  further 
interpreted  as  permitting  unauthorized,  concerted  "single  copying''  (photo- 
copying, electronic  copying,  etc. ) . 

The  Society  recognizes  the  need  to  develop  total  systems  for  information 
transfer ;  therefore,  it  specifically  opposes  any  broadening  or  interpretation  of 
the  definition  of  or  the  right  to  prepare  a  "derivative  work"  that  would  reserve 
to  "authors"  (primary  publications)  the  right  to  control  the  writing  of  original 
informative  abstracts  that  are  not  complete  "abridgments"  or  "condensations." 
However,  the  latter  are  accepted  as  being  fully  protected  derivative  works ; 
they  are  of  significance  to  the  Society's  future  primary  publication  of  "short 
papers." 

The  Society  advocates  immediate  copyright-law  revisions  that  will  more  com- 
pletely and  explicitly  define  and  continue  to  protect  such  technological  develop- 
ments as  computerized  information  bases,  computerized  data  bases,  computer 
programs,  and  microforms,  i.e.,  that  will  define  and  specify  these  as  "Exclusive 
Riglits  in  Copyriglited  Works."  Because  the  scope  and  importance  of  these  tech- 
nological developments  are  already  extensive,  the  Society  no  longer  advocates 
deferring  related  copyright-law  revisions  until  after  the  studies  and  recommen- 
dations of  the  National  Commission  on  New  Technological  Uses  of  Copyrighted 
Works.  In  particiilar,  the  Society  firmly  advocates  revisions  which  clarify  and 
continue  the  protection  of  copyrighted  computer  bases  at  time  of  input,  on  the 
basis  that  copyright  control  at  output  only  might  be  limited  severely  by  broad 
interpretations  of  "fair  use." 

The  Society  opposes  most  of  the  specific  additional  limitations  on  the  exclu- 
sive rights  of  authors  and  their  publishers  to  provide  copies  of  copyrighted  pub- 
lications that  are  contained  in  recent  legislative  bills.  As  proposed,  these  limita- 
tions do  not  really  meet  the  needs  of  "users"  and  libraries  for  uncomplicated 
copying. 

The  Society  recognizes  that  these  and  other  limitations  on  exclusive  rights 
to  provide  copies  are  based  on  the  very  real  desire  of  "users,"  and  libraries  in 
their  behalf,  to  avail  themselves  of  such  "new  technology"  as  photocopying  to 
prepare  or  obtain  copies  of  copyrighted  documents  quickly  and  easily.  The  So- 
ciety has  repeatedly  declared  its  readiness  to  cooperate  in  the  developm_ent  of  a 
clearinghouse  that  can  grant  such  permissions  in  an  equitable  and  simple  man- 
ner and  is  presently  working  actively  tow^ard  this  goal  through  the  Conference 
on  the  Resolution  of  Copyright  Issues  under  the  chairmanship  of  Barbara 
Ilinger,  Register  of  Copyrights,  and  Fred  Burkhardt.  Chairman  of  the  National 
Commission  on  Libraries  and  Information  Science.  The  Society  also  advocates 
the  development  of  "document-access  networks"  that  will  quickly  supply  actual 
copies  in  an  equitable  maimer.  The  Society  therefore  advocates  coiiyright-law 
provisions  that  will  equitably  authorize  and  regulate  such  important  services  to 
"users." 

Despite  reservations  on  some  segments  of  this  bill,  the  American  Chemical 
Society  recommends  passage  of  the  sections  of  H.R.  2223  related  to  the  library 
pliotocopying.  This  recommendation  is  made  with  the  belief,  based  on  work  witii 
the  Conference  on  the  Resolution  of  Copyright  Issues,  that  a  practicable  system 
for  licensing  and  fee  collection  for  photocopies  of  copyrighted  works  can  be  de- 
veloped wliich  will  render  fair  and  equitable  charges  for  systematic  photoc^p.v- 
ing  in  the  interest  of  an  improved  and  economically  viable  system  for  the  dis- 
semination of  scientific  information.  Plans  now  are  being  developed  for  testing 
such  a  mechanism. 

Mr.  Danielson.  I  believe  the  next  gentleman  is  Mr.  Hoopes,  presi- 
dent of  the  Association  of  American  Publishers. 


237 

TESTIMONY  OF  TOWNSEND  HOOPES,  PRESIDENT,  ASSOCIATION  OF 

AMERICAN  PUBLISHERS 

Mr.  HooPES.  Thank  you,  ]\Ir.  Chairman.  I  am  the  president  of  an 
association  of  265  members  who  are  responsible  for  the  publication 
of  perhaps  85  percent  of  all  the  books  published  in  this  country. 

On  behalf  of  our  association  and  speaking  to  some  extent  for  the 
other  copyright  owners,  my  purpose  is  to  reinforce  support  for  the 
present  sections  107  and  108,  which  INIr.  Lieb  has  addressed  in  some 
detail.  Mainly  I  will  summarize  our  recent  experience  with  the  library 
community  in  seeking  to  be  responsive  to  jwinted  suggestions  from 
both  the  House  and  Senate  Judiciary  Committees. 

The  Senate  report  accompanying  S.  18G1,  which  passed  the  Senate 
last  September,  expressed  the  belief  that  section  108  provides  "an 
appropriate  balancing  of  the  rights  of  creators  and  the  needs  of 
users."  At  the  same  time,  recognizing  the  complexities,  the  report  urged 
the  parties — in  this  instance  authors,  publishers,  and  librarians— to 
meet  together  directly  in  order  to  develop  more  precise  photocopying 
guidelines  for  fair  use;  and  also  to  develop  workable  clearance  and 
license  arrangements  for  copying  beyond  fair  use. 

This  urging  by  the  Senate  committee  repeated  a  similar  proposal  by 
the  House  Judiciary  Committee  in  1967.  Responsive  to  that  earlier 
proposal,  publishers  and  authors  met  with  librarians  in  1972  and  again 
in  1973  for  discussions  that  became  known,  somewhat  grandiloquently, 
as  the  "Cosmos  Club  and  Dumbarton  Oaks  talks." 

The  formula  evolved  at  the  Cosmos  Club  was  that,  if  reprints  of 
journal  articles  were  readily  available  from  the  publisher  or  his  agent, 
then  the  library  would  refrain  from  photocopying  of  its  own.  The 
formula  evolved  at  Dumbarton  Oaks  was  that  a  journal  publisher 
would  encode  the  front  page  of  each  journal  article  with  a  serial  num- 
ber and  a  reprint  price,  and  that  a  librar}^  making  a  copy  thereof  would 
so  advise  a  clearinghouse  operated  by  the  publislier.  At  quarterly,  or 
semi-annual  intervals  the  clearinghouse  would  bill  the  library  for  the 
aggregate  royalty  charges,  and  would  then  distribute  the  proceeds  to 
individual  publishers.  Wliile  both  the  Cosmos  and  Dumbarton  efforts 
were  deemed  feasible  by  the  library  participants,  they  were  later  both 
shot  down  by  officials  of  the  various  associations. 

Since  November,  1974,  publishers  have  again  been  negotiating  with 
the  librarians  under  the  joint  sponsorship  of  the  Register  of  Copy- 
rights and  the  Chairman  of  the  National  Commission  on  Libraries  and 
Information  Science.  Eight  meetings  of  a  12-man  working  group  were 
held  between  early  December  1974  and  mid-April  of  this  year. 

I  regret  to  say,  Mr.  Chairman,  that  there  has  not  been  much  progress 
to  date,  chiefly  because  the  librarians  have  refused  to  accept  either 
the  Senate  bill,  or  the  guidances  suggested  by  the  Library  Commission 
chairman  and  Miss  Ringer,  as  in  any  way  a  limiting  frame  of  refer- 
ence. We  have  asked  them,  for  example,  to  join  with  us  in  defining 
typical  situations  of  two  kinds :  (a)  Those  which  would  clearly  involve 
fair  use  copying,  and  (b)  those  which  would  clearly  involve  systematic 
copying  beyond  fair  use,  thereby  requiring  permission  and  royalty 
payment. 

Their  consistent  reply  has  been  that  they  know  of  no  copying  done 
by  libraries  which  extends  beyond  fair  use.  JNIr.  Low  in  his  statement 


238 

this  morning  complained  about  the  practical  difficulties  of  distin- 
guishing single  copying  from  S3^stematic  copying,  but  it  is  a  matter  of 
record  that  his  group  has  refused  even  to  discuss  guidelines  designed 
to  establish  just  such  practical  distinctions. 

Having  thus  failed  to  come  to  grips  with  the  substantive  issue  here 
involved,  the  two  sides  have  recently  agreed  to  conduct  a  survey  of 
actual  photocopying  practices  in  libraries,  and  a  test  of  a  payments 
mechanism  modeled  along  the  lines  of  the  Dumbarton  Oaks  proposal. 
But  the  library  community  has  made  clear  tliat  its  participation  in  this 
exercise  in  no  way  implies  an  obligation  to  pay  royalties  under  any 
circumstances. 

I  suggest,  Mr.  Chairman,  two  possible  explanations  for  this  unfor<^h- 
coming  attitude.  Either  the  library  community  as  a  whole  is  still 
attempting  to  secure  total  exemption  from  copyrights  and  expects  to 
get  its  way  with  the  Congress ;  or  the  attitude  here  expressed  reflects  a 
minority  view  of  the  library  conmiunity  and  is  not,  therefore,  repre- 
sentative of  the  whole.  In  this  latter  connection,  I  must  say  that  we 
are  struck  by  the  difference  in  the  attitude  we  have  found  among  local 
librarians,  and  those  expressed  by  the  official  spokesman  of  the  library 
associations  in  Washington.  In  the  field,  we  have  encountered  wide- 
spread sympathy  for  and  understanding  of  the  basic  conce]:)t  of  copy- 
right, and  of  the  need  for  copyright  protection,  accompanied  hy  a  felt 
need  for  guidelines  that  will  more  precisely  determine  the  dividing 
line  between  fair  use  and  infringement. 

I  would  like  to  make  brief  mention  in  this  same  context  of  the  Com- 
mission on  New  Technological  Uses  of  Copyrighted  Works  which  was 
established  by  law  on  December  ol,  1974.  Our  association  has  sup- 
ported and  does  support  this  commission.  But  we  believe  it  would  be  a 
serious  mistake  if  Congress  should  seek  to  avoid  coming  to  its  own  finite 
conclusions  on  key  copyright  issues  on  the  grounds  that  such  questions 
ought  logically  to  be  referred  to  the  new  commission.  In  our  judgment 
such  a  course  would  represent  a  serious  abdication  of  congressional 
responsibilit}^,  and  would  increase  rather  tlian  decrease  the  ensuing 
confusion.  In  a  true  sense  it  would  merely  shift  the  debate  to  another 
forum,  and  one  not  nearly  so  well  placed  as  the  Congress  for  bringing 
the  controversial  questions  to  clear  resolution. 

In  the  nature  of  things,  Mr.  Chairman,  the  ramifications  of  the  copy- 
right issue  in  the  context  of  rapid  technological  change  will  assure  that 
the  new  commission  has  a  great  many  questions  to  debate  and  resolve. 
But  the  commission's  work  will  proceed  on  a  far  more  liopeful  basis 
if  the  Congress  accepts  its  own  responsibility  for  setting  workable 
guidelines  in  the  new  law.  In  our  judgment  congressional  endorsement 
of  the  existing  language  of  sections  107  and  108  would  constitute  the 
necessary  guidelines  for  print  media. 

Thank  you,  Mr.  Chairman. 

[The  prepared  statement  of  Mr.  Hoopes  follows :] 

Statement  op  Townsend  Hoopes.  President,  The  Association  of  American 

Publishers 

Mr.  Chairman.  My  name  is  Townsend  Hoopes.  I  am  President  of  tlie  Association 
of  American  Publishers,  the  extent  and  influence  of  whose  membership  Mr.  Lieb 
has  described.  I  should  add  parenthetically  that,  in  addition  to  representing 
publishers,  I  have  written  two  books  and  intend  to  write  more,  so  that  my  con- 
victions about  the  need  for  copyright  protection  are  based  on  authorship  as  well 
as  publishing,  I  agree  with  Ms.  Ringer  that  protection  of  authors'  rights  is  at  the 


239 

very  core  of  the  Constitutional  provision  for  copyright  protection,  and  that  the 
need  for  such  protection  is  a  direct  consequence  of  the  need  to  assure  continuance 
of  intellectual  creativity,  a  function  which  cannot  be  performed  by  a  committee 
but  only  by  an  individual. 

On  behalf  of  the  Association,  and  also  speaking  to  some  extent  for  the  other 
proprietary  owners  here  assembled,  my  purpose  is  to  reinforce  support  for  the 
present  language  of  Sections  107  and  108  of  H.R.  2223,  which  Mr.  Lieb  has  ad- 
dressed in  some  detail.  Mainly  I  will  summarize  our  recent  experience  with  the 
library  community  in  seeking  to  be  responsive  to  pointed  suggestions  from  both 
the  House  and  Senate  Judiciary  Committees. 

The  Senate  report  accompanying  S.  1361  expressed  the  belief  that  Section  lOS 
provides  "an  appropriate  balancing  of  the  rights  of  creators  and  the  needs  of 
users" ;  at  the  same  time,  recognizing  the  complexities,  the  report  urged  the 
partie.s — in  this  instance  authors,  publishers  and  librarians — to  meet  together 
directly  in  order  to  develop  more  precise  photocopying  guidelines  for  "fair  use"', 
and  also  to  develop  workable  clearance  and  license  arrangements  for  copying 
beyond  f:iiv  use.  This  urging  by  the  Senate  Committee  repeated  a  similar  proposal 
by  the  House  Judiciary  Committee  in  1967.  Responsive  to  that  earlier  prop(i.*;al, 
publishers  and  authors  met  with  librarians  in  1972  and  again  in  1973  for  discus- 
sions that  became  known,  somewhat  grandiloquently,  as  the  Cosmos  Club  and 
Dumbarton  Oaks  talks.  The  formula  evolved  at  the  Cosmos  Club  was  that,  if  re- 
prints of  a  journal  article  were  readily  available  from  the  publisher  or  his  agent, 
the  library  would  refrain  from  photocopying  of  its  own.  The  formula  evolved  at 
Duii'barton  Oaks  was  that  a  journal  imblisber  would  encode  the  front  page  of  each 
journal  article  with  a  serial  number  and  a  reprint  price,  and  that  a  library  making 
a  copy  thereof  would  so  advise  a  clearinghouse  operated  by  the  publishers.  At 
quarterly  or  semiannual  intervals,  the  clearinghouse  would  bill  the  library  for  the 
aggregate  royalty  charges  and  would  then  distribute  the  proceeds  to  individual 
publishers.  While  both  the  Cosmos  and  Dumbarton  efforts  were  deemed  feasible  by 
the  library  participants,  they  were  later  both  shot  down  by  othcials  of  the  several 
library  associations. 

Since  November  1974,  the  publishers  have  again  been  negotiating  witJi  the 
librarians  under  the  joint  sponsorship  of  the  Register  of  Copyrights  and  tlie 
Chairman  of  the  National  Commission  on  Libraries  and  Information  Science. 
Eight  meetings  of  a  twelve-man  working  grovip  were  held  between  early  Decem- 
ber 1974  and  mid-April  of  this  year.  I  regret  to  say,  Mr.  Chairman,  that  there  has 
not  been  much  progress  to  date,  chiefly  because  the  librarians  have  refused  to 
accept  either  the  Senate  bill  or  the  guidances  suggested  by  NCLIS  and  Ms. 
Ringer  as  in  any  way  a  limiting  frame  of  reference.  We  have  asked  them,  for 
example,  to  join  with  us  in  defining  typical  situations  of  two  kinds :  ( a )  those 
that  would  clearly  involve  fair  use  copying,  and  (b)  those  that  would  clearly 
involve  systematic  copying  beyond  fair  use  thereby  requiring  permission  and 
royalty  payment.  Their  consistent  reply  has  been  that  they  know  of  no  copying 
done  by  libraries  which  extends  beyond  fair  use. 

I  suggest.  Mr.  Chairman,  there  are  two  possible  explanations  for  this  unforth- 
coming  attitude.  Either  the  library  community  as  a  whole  is  still  attempting  to 
secure  total  exemption  from  copyright,  and  expects  to  get  its  way  with  the 
Congress;  or  the  attitude  here  expressed  reflects  a  minority  view  within  the 
library  community  and  is  not  therefore  representative  of  the  whole.  In  this  latter 
connection.  I  must  say  that  we  are  struck  by  the  difference  in  the  attitudes  we 
have  found  among  local  librarians  and  those  expressed  by  the  oflicial  spokesmen 
of  library  associations  in  Washington.  In  the  field,  we  have  encountered  wide- 
spread sympathy  for  and  understanding  of  the  basic  concept  of  copyright  and  of 
the  need  for  copyright  protection,  accompanied  by  a  felt  need  for  guidelines 
that  will  more  precisely  determine  the  dividing  line  between  fair  use  and  infringe- 
ment. 

I  would  like  to  make  brief  mention  in  this  same  context  of  the  Commission  on 
New  Technological  Uses  of  Copyrighted  Works  which  was  established  by  law  on 
December  31,  1974.  Our  Association  has  supported  and  does  support  this  Com- 
mission, but  we  believe  it  would  be  a  serious  mistake  if  the  Congress  should 
seek  to  avoid  coming  to  its  own  finite  conclusions  on  key  copyright  issues,  on  the 
ground  that  such  questions  could  logically  be  deferred  for  consideration  ])y  the 
new  Commission.  In  our  judgment,  such  a  course  would  represent  a  serious 
abdication  of  Congressional  responsibility,  and  would  increase  rather  than 
decrease  the  ensuing  confusion.  In  a  true  sense,  it  would  merely  shift  the  debate 


240 

to  another  forum  and  one  not  so  well  placed  as  the  Congress  for  bringing  the 
controversial  questions  to  clear  resolution. 

In  the  nature  of  things,  the  ramifications  of  the  copyright  issue  in  the  context 
of  rapid  technological  change  will  assure  that  the  new  Commission  has  a  great 
many  questions  to  debate  and  resolve.  But  the  Commission's  work  will  proceed 
on  a  far  more  hopeful  basis  if  the  Congress  accepts  its  own  responsibility  for 
setting  workable  guidelines  in  the  new  law.  In  our  judgment,  Congressional 
endorsement  of  the  existing  language  of  Sections  107  and  108  constitutes  the 
necessary  guidelines  for  the  print  media. 

Mr.  Danielson.  You  have  some  more  time,  if  you  like — Mr.  Lieb 
h«s  a  comment  to  make. 

Mv.  Lieb.  May  I  respond  as  one  of  the  many  lawyers  who  was  in- 
volved in  the  wonderful  case  of  Williams  c&  Wilkins,  in  view  of  the 
questions  that  were  raised  this  morning  about  it  ? 

First  of  all,  Mr.  Pattison,  although  it  is  true  that  the  Supreme  Court 
decision  said  the  judgment  of  the  Court  of  Claims  is  affirmed  on  a 
four  to  four  vote,  the  established  law  is  that  such  a  decision  by  the 
Supreme  Court  lacks  any  precedential  value  whatsoever  as  far  as  the 
Supreme  Court  is  concerned. 

Second,  I  would  like  to  point  out  to  those  who  are  not  intimately 
familiar  with  the  bi-iefing  in  the  case,  that  the  Solicitor  General  in  his 
l^rief  to  the  Supreme  Court  defended  the  practices  as  shown  by  the 
record  on  appeal,  and  there  was  a  very  limited,  narrow  record  of  only 
copying  of  eight  articles  of  at  most  three  times  of  one,  the  other  twice 
of  one. 

The  Solicitor  General  defended  the  practices  that  appeared  in  the 
record  as  not  systematic  and  said  in  two  places  in  his